Exhibit 10.10
AMENDED AND RESTATED EMPLOYMENT, CONFIDENTIALITY,
NON-COMPETITION AND SEVERANCE AGREEMENT
THIS EMPLOYMENT, CONFIDENTIALITY, NON-COMPETITION AND SEVERANCE
AGREEMENT (the "Agreement") dated as of January 5, 2000 is made and entered into
by and between Affiliated Research Centers, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Executive and the Company are presently parties to an
Employment, Confidentiality and Non-Competition Agreement, dated as of April 2,
1997, and a Severance Agreement, dated as of April 2, 1997 (together, the
"Existing Agreement"); and
WHEREAS, the Company anticipates entering into an Agreement and Plan
of Merger with XxxxxxxxXxxxxx.xxx, Inc., a Delaware corporation ("AmDoc")
pursuant to which a wholly-owned subsidiary of the Company will merge with and
into AmDoc and thereafter AmDoc will be a wholly-owned subsidiary of the Company
(the "Merger"); and
WHEREAS, the Company and Executive believe that it is in their
respective best interests to enter into and deliver this Agreement, which will
amend and restate the Existing Agreement in its entirety; and
WHEREAS, Executive is a senior executive of the Company and has made
and is expected to continue to make major contributions to the short-and long-
term profitability, growth and financial strength of the Company; and
WHEREAS, the Executive acknowledges that in the course of his
employment by the Company, he will or may have access to and become informed of
the Company's confidential information and will frequently come into contact
with the Company's customers (including, without limitation, its investigative
research sites) and accounts such that the Executive will influence the business
and relationships between the Company and its customers and accounts; and
WHEREAS, the Executive has agreed to certain confidentiality,
nonsolicitation and non-competition agreements;, and in consideration for such
agreements, the Company has agreed to pay the Executive termination payments
upon severance of the Executive's employment hereunder; and
WHEREAS, the Company recognizes that, as is the case for most
companies, the possibility of a Change in Control (as defined below) exists; and
WHEREAS, the Company desires to ensure both present and future
continuity of management and desires to establish certain minimum severance
benefits for certain of its senior executives, including the Executive,
applicable in the event of a Change in Control; and
WHEREAS, the Company desires to ensure that its senior executives are
not practically disabled from discharging their duties in respect of a proposed
or actual transaction involving a Change in Control.
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Certain Defined Terms. In addition to terms defined elsewhere
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herein, the following terms have the following meanings when used in this
Agreement with initial capital letters:
(a) "Base Pay" means the Executive's annual base salary as provided in
Section 5 of this Agreement, at a rate not less than the Executive's annual
fixed or base compensation as in effect for Executive immediately prior to the
occurrence of a Change in Control or such higher rate as may be determined from
time to time after a Change in Control by the Board or a committee thereof.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means
(i) intentional engagement by the Executive in misconduct
which is materially injurious to the Company, monetarily or otherwise;
(ii) intentional act by the Executive of fraud, embezzlement or
theft in connection with his duties or in the course of his employment
with the Company or any subsidiary;
(iii) intentional damage by the Executive to property of the
Company or any subsidiary;
(iv) material breach of Section 14 or Section 15 hereof;
(v) intentional engagement by the Executive in any Competitive
Activity; or
(vi) intentional wrongful disclosure by the Executive of secret
processes or confidential information of the Company or any
Subsidiary;
For purposes of this Agreement, no act or failure to act on the Executive's
part shall be deemed "intentional" if it was due primarily to an error in
judgment or negligence, but it shall be deemed "intentional" only if it was
not in good faith and without reasonable belief that his act or failure to
act was in the Company's best interest. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for "Cause" hereunder
unless and until the Executive receives a copy of a resolution duly adopted
by the affirmative vote of not less than two-thirds of the Board then in
office (excluding the Executive if he is a Director) at a meeting of the
Board called and held for such purpose, after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel
(if the Executive chooses to have counsel present at such meeting), to be
heard before the Board, finding that, in the good faith opinion of the
Board, the Executive was guilty of
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conduct constituting "Cause" as herein defined and specifying the
particulars thereof. Nothing herein will limit the right of the Executive
or his beneficiaries to contest the validity or propriety of any such
determination.
(d) "Change in Control" means the occurrence during the term of this
Agreement of any of the following events:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 15% or more of the combined voting
power of the then outstanding Voting Stock; provided, however, that for
purposes of this Section 1(d)(i), the following acquisitions shall not
constitute a Change in Control: (A) any acquisition (including, without
limitation, a financing) directly from the Company that is approved by the
Incumbent Board (as defined below), (B) any acquisition by the Company, (C)
any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any Subsidiary or (D) any acquisition by
any Person pursuant to a Business Combination (as defined below) that
complies with clauses (I), (II) and (III) of subsection (iii) of this
Section 1(d);
(ii) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board except that any individual becoming a Director
subsequent to the date hereof whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least two-thirds
of the Directors then comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to such
nomination) shall be deemed to have been a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest (within the meaning of Rule 14a-11 of the Exchange Act) with
respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board;
(iii) consummation of (A) a reorganization, merger or
consolidation or (B) a sale or other disposition of all or substantially
all of the assets of the Company (each, a "Business Combination"), unless,
in each case, immediately following such Business Combination, (I) all or
substantially all of the individuals and entities who were the beneficial
owners of Voting Stock of the Company immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 50% of the
then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of Directors of the entity resulting from such Business
Combination (including, without limitation, an entity which as a result of
such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries) in
substantially the same proportions relative to each other as their
ownership, immediately prior to such Business Combination, of the Voting
Stock of the Company, (II) no Person (other than the Company, such entity
resulting from such Business Combination or any employee benefit plan (or
related trust) sponsored or maintained by the Company, any Subsidiary or
such entity resulting from such Business Combination) beneficially owns,
directly or indirectly, 15% or more of the then outstanding
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shares of common stock of the entity resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors of such
entity and (III) at least a majority of the members of the Board of
Directors of the entity resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such Business
Combination; or
(iv) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (I), (II) and (III) of subsection
(iii) of this Section 1(d);
provided, however, that notwithstanding the foregoing, neither the execution by
the Company and ARC Merger Sub-1, Inc. of the Agreement and Plan of Merger with
AmDoc nor the consummation of the transactions contemplated thereby, shall
constitute a Change in Control for purposes of this Agreement.
(e) "Competitive Activity" means the Executive's participation, without
the written consent of the Board of the Company, as an employee, officer,
consultant or director of any business enterprise if such enterprise engages in
substantial and direct competition with the Company and such enterprise's sales
of any product or service competitive with any product or service of the Company
amounted to 50% of such enterprise's net sales for its most recently completely
fiscal year and if the Company's net sales of said product or service amounted
to 50% of the Company's net sales for its most recently completed fiscal year.
"Competitive Activity" will not include (i) the mere ownership of securities in
any such enterprise and the exercise of rights appurtenant thereto or (ii)
participation in the management of any such enterprise other than in connection
with the competitive operations of such enterprise.
(f) "Disabled" means the Executive's incapacity due to physical or mental
illness to substantially perform his duties on a full-time basis for six
consecutive months unless the Executive returns to the full-time performance of
the Executive's duties for a period of at least three consecutive months no
later than 30 days after the Company has given the Executive a notice of
termination. If the Executive disagrees with a determination to terminate him
because the Company believes he is Disabled, the Company and the Executive, or
in the event of the Executive's incapacity to designate a doctor, the
Executive's legal representative, together shall choose a qualified medical
doctor who shall determine whether the Executive is Disabled. If the Company and
the Executive cannot agree on the choice of a qualified medical doctor, then the
Company and the Executive each shall choose a qualified medical doctor and the
two doctors together shall choose a third qualified medical doctor, who shall
determine whether the Executive is Disabled. The determination of the chosen
qualified medical doctor as to whether the Executive is Disabled shall be
binding upon the Company and the Executive unless such determination is clearly
made in bad faith.
(g) "Employee Benefits" means the perquisites, benefits and service credit
for benefits as provided under any and all employee retirement income and
welfare benefit policies, plans, programs or arrangements in which Executive is
entitled to participate, including without limitation any stock option, stock
purchase, stock appreciation, savings, pension, supplemental executive
retirement, or other retirement income or welfare benefit, deferred
compensation, incentive compensation, group or other life, health,
medical/hospital or other insurance (whether funded by actual insurance or self-
insured by the Company), disability, salary continuation, expense
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reimbursement and other employee benefit policies, plans, programs or
arrangements that may now exist or any equivalent successor policies, plans,
programs or arrangements that may be adopted hereafter by the Company, providing
perquisites, benefits and service credit for benefits at least as great in the
aggregate as are payable thereunder prior to a Change in Control.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
(i) "Incentive Pay" means an annual amount equal to not less than the
highest aggregate annual bonus, incentive or other payments of cash (or, if
taken in lieu thereof, stock) compensation, in addition to Base Pay, made or to
be made in regard to services rendered in any calendar year during the three
calendar years immediately preceding the year in which a Change in Control
occurs pursuant to any bonus, incentive, profit-sharing, performance,
discretionary pay or similar agreement, policy, plan, program or arrangement
(whether or not funded) of the Company, or any successor thereto providing
benefits at least as great as the benefits payable thereunder prior to a Change
in Control.
(j) "Involuntary Termination" means the occurrence of any of the
following: (i) the Company gives written notice to the Executive that the
Company intends to terminate the Employment Provisions (as defined below), (ii)
the Company reduces the Executive's base salary as set forth in Section 5,
unless such reduction in base salary is part of a reduction applicable generally
to senior executives of the Company or (iii) unless otherwise agreed by the
Executive, the Company relocates the Executive or his offices or the principal
place where he is required to perform his duties hereunder farther than 50 miles
from Gurnee, Illinois or such other place as the Company's principal executive
offices may, from time to time, be located.
(k) "Restricted Business" means (i) any business or division of a business
which consists of providing services to investigative sites and to their
customers in connection with clinical research and development, (ii) any
business or division of a business which operates an interactive Internet
healthcare information site for consumers, (iii) any business of a kind in whole
or in part similar to that heretofore or hereafter engaged in by the Company or
any of its subsidiaries, and (iv) any other principal line of business developed
or acquired by the Company or its affiliates.
(l) "Severance Period" means the period commencing on the date of the
first occurrence of a Change in Control and expiring on the earliest of (i) the
second anniversary of the occurrence of the Change in Control, (ii) the
Executive's death or (iii) the Executive's attainment of age 65 except that
commencing on each anniversary of the Change in Control, the Severance Period
shall automatically be extended for an additional year unless, not later than 60
calendar days prior to such anniversary date, either the Company or the
Executive shall have given written notice to the other that the Severance Period
is not to be so extended.
(m) "Subsidiary" means an entity in which the Company directly or
indirectly beneficially owns 50% or more of the outstanding Voting Stock.
(n) "Termination Date" means the date on which the Executive's employment
is terminated (the effective date of which shall be the date of termination, or
such other date that may be specified by the Executive if the termination is
pursuant to Section 10(b)).
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(o) "Voluntary Termination" means the occurrence of any of the following:
(i) the date two weeks after the Executive gives written notice to the Company
that the Executive intends to terminate the Employment Provisions or if later,
the date specified in such written notice, (ii) the Executive dies or (iii) the
Executive becomes Disabled.
(p) "Voting Stock" means securities entitled to vote generally in the
election of directors.
2. Term. (a) The term of Sections 1 through 9 of this Agreement (the
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"Employment Provisions") commences on the date this Agreement is approved by the
Board and, subject to any benefit continuation requirements of applicable laws,
expires on the earliest of (i) an Involuntary Termination, (ii) a Voluntary
Termination or (iii) one year from the date hereof, except that the Employment
Provisions shall automatically renew for successive one-year periods upon the
terms and conditions set forth herein, commencing on the first anniversary of
the date hereof, and on each anniversary date thereafter, until an Involuntary
Termination or Voluntary Termination occurs. For purposes of this Agreement, any
reference to the "term" of the Employment Provisions includes the original term
and any extension thereof.
(b) The term of Sections 10 through 13 of this Agreement (the "Severance
Provisions") commences on the date this Agreement is approved by the Board and
expires on the later of (i) one year from the date hereof or (ii) the expiration
of the Severance Period except that (A) commencing on each anniversary of the
date hereof, such period shall automatically be extended for an additional year
until such date as the Company or the Executive gives the other written notice
not later than 60 calendar days prior to such anniversary date that it or he, as
the case may be, does not wish to have the term extended and (B) subject to the
last sentence of Section 18, if, prior to a Change in Control, the Executive
ceases for any reason to be an employee of the Company, thereupon without
further action the term shall expire and this Agreement will immediately
terminate and be of no further effect.
(c) This Agreement will be effective and binding immediately upon its
approval by the Board, but, anything in this Agreement to the contrary
notwithstanding, the Severance Provisions shall not be operative unless and
until a Change in Control occurs. Upon the occurrence of a Change in Control at
any time during the term of this Agreement, without further action, the
Severance Provisions shall become immediately operative.
3. Employment. The Company hereby agrees to employ the Executive,
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and the Executive hereby agrees to be employed by the Company, upon the terms
and conditions herein set forth.
4. Duties of the Executive. The Executive shall serve as Chief
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Financial Officer of the Company. The Executive shall report directly to the
Chief Executive Officer of the Company. The Executive shall devote his full time
and best efforts to the Company's business of providing services to
investigative sites and to their customers in connection with clinical research
and development and providing services to sponsor hospitals and consumers in
connection with the Company's interactive Internet healthcare information site
and any other related duties and responsibilities that may from time to time be
prescribed by the Chief Executive Officer of the Company or the Board, and so
long as it does not interfere with the Executive's employment hereunder, the
Executive may serve as an officer, director or otherwise participate in
educational, welfare, social, religious and civic organizations.
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5. Compensation. (a) The Company shall pay the Executive a base
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salary of $200,000.00 per annum, which base salary the Board may adjust from
time to time, payable at the times and in the manner consistent with the
Company's general policies regarding compensation of senior executives. Such
base salary includes any salary reduction contributions to (i) any Company-
sponsored plan (the "401(k) Plan") that includes a cash-or-deferred arrangement
under Section 401(k) of the Internal Revenue Code of 1986, as amended (the
"Code"), (ii) any other Company-sponsored plan of deferred compensation or (iii)
any Company-sponsored "cafeteria plan" under Section 125 of the Code.
(b) If the Board authorizes cash incentive compensation under the
Company's executive incentive compensation plan or such other management
incentive program or arrangement as may be approved by the Board, Executive
shall be eligible to participate in such plan, program or arrangement on the
most favorable terms and conditions available to senior executive and management
employees and shall be eligible to receive an annual cash incentive bonus in an
amount equal to up to 50% of Executive's base salary for such fiscal year, or
such higher amount as the Board, in its sole discretion, may approve, which cash
incentive compensation shall be paid when incentive compensation is customarily
paid to the Company's senior executives. Pursuant to the Company's applicable
incentive or bonus plan as in effect from time to time, Executive's cash
incentive compensation for fiscal 2000 and succeeding fiscal years during the
term of this Agreement may be determined according to criteria intended to
qualify under Section 162(m) of the Code.
(c) Following consummation of the merger, the Company will grant to
Executive under the Company's Amended and Restated 1996 Employee Stock Option
Plan (the "Plan") stock options exercisable to purchase up to 88,522 shares of
the Company's Class A Common Stock, par value $.001 per share (the "Class A
Common Stock") at an exercise price per share of $10.00. Such options would
become exercisable to the extent of 25% of the shares covered by the option on
the first anniversary of the date of grant and the remaining 75% of the shares
covered by the option would vest in equal installments at the end of each of the
following twelve fiscal quarters of the Company. To the extent permitted by
applicable law and the terms and conditions of the Plan, the above-referenced
stock options shall be "incentive stock options" as that term is defined under
Section 422 of the Code and any remaining stock options shall be non-qualified
stock options.
(d) The Company shall purchase and maintain term life insurance coverage
on the life of Executive in an amount not less than $1,000,000, the proceeds of
which, in the event of Executive's death during the term of the Agreement, shall
be, at the sole discretion of Executive's estate, used at any time during the
180-day period following Executive's death to repurchase up to $1,000,000 of the
equity securities owned by Executive at the time of his death (or acquired
thereafter by his estate pursuant to Executive's stock options) at a price per
share equal to the fair market value of such shares on the date of repurchase,
as determined by the Board in good faith. Any remaining proceeds of such
insurance policy shall be retained by the Company.
(e) The Company shall purchase and maintain a long-term disability policy
that would entitle Executive, should he become Disabled during the term of this
Agreement, to receive 60% of Executive's then current base salary, which policy
shall be in addition to any disability coverage obtained by the Executive on his
own behalf.
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6. Benefits. The Company shall make available to the Executive,
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subject to the terms and conditions of the applicable plans, including without
limitation the eligibility rules, participation for the Executive and his
eligible dependents in the Company-sponsored employee benefit plans or
arrangements and such other usual and customary benefits now or hereafter
generally available to employees of the Company and such benefits and
perquisites as are made available to senior executives of the Company,
including, without limitation, equity and cash incentive programs and
supplemental retirement, deferred compensation and welfare plans.
7. Expenses. The Company shall pay or reimburse the Executive, in
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accordance with the general policies of the Company, for reasonable and
necessary expenses incurred by the Executive in connection with his duties on
behalf of the Company.
8. Place of Performance. In connection with his employment by the
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Company, unless otherwise agreed by the Executive, the Executive shall be based
at offices located in Gurnee, Illinois or, at the Company's request, such other
place as the Company's principal executive offices may, from time to time, be
located, except for travel reasonably required for Company business.
9. Termination Payments, Vesting and Exercise of Stock Options upon
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Involuntary Termination other than for Cause or Voluntary
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Termination due to Death or Disability.
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(a) If an Involuntary Termination occurs other than (x) for Cause or
(y) pursuant to Section 10 and if the Executive enters into a release and
settlement agreement with the Company, then
(i) for a period of one year thereafter (the "Payment Period"), the
Company shall pay the Executive, in accordance with the Company's regular
payroll schedule, termination payments that in the aggregate equal the sum
of (A) the Executive's highest annual base salary during the three-year
period prior to the Executive's termination plus (B) the Executive's
average annual cash and equity incentive compensation award during the
three-year period prior to the Executive's termination;
(ii) during the Payment Period, the Company shall (A) to the extent
permitted under the 401(k) Plan, permit the Executive to continue to
participate in the 401(k) Plan and receive the maximum matching
contribution thereunder as if the Involuntary Termination had not occurred,
or (B) if continued participation in the 401(k) Plan is not permitted under
the 401(k) Plan, pay to the Executive an amount equal to the maximum
matching contribution to which he would have been entitled under the
Company's 401(k) Plan as if such Involuntary Termination had not occurred;
and
(iii) notwithstanding anything to the contrary in the Executive's
stock option agreement(s) or certificate(s) or in the stock option plan(s)
under which Executive's stock options were granted, (A) all of Executive's
stock options granted on or prior to the date of this Agreement (but not
any stock options granted after the date of this Agreement) shall continue
to vest during the Payment Period at the times and in the amounts that
would apply if such Involuntary Termination had not occurred, (B) Executive
shall have the right to exercise any and all vested stock options granted
on or prior to the date of this Agreement at any time no later than 90 days
after the expiration of the Payment Period (C) all of
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Executive's stock options granted after the date of this Agreement shall
cease to vest on the date of the Involuntary Termination and (D) Executive
shall have the right to exercise any and all vested stock options granted
after the date of this Agreement at any time no later than 90 days after
the date of the Involuntary Termination.
(b) Notwithstanding anything to the contrary herein, any termination
payments which the Executive becomes entitled to receive under Section 9(a)
shall be reduced to the extent that the Executive receives payments of severance
compensation pursuant to Section 10.
(c) Any termination payments hereunder shall not be taken into
account for purposes of any retirement plan or other benefit plan sponsored by
the Company, except as otherwise set forth herein or as expressly required by
such plans or applicable law.
(d) If a Voluntary Termination due to Executive's death during the
term of this Agreement occurs, then notwithstanding anything to the contrary in
the Executive's stock option agreement(s) or certificate(s) or in the stock
option plan(s) under which Executive's stock options were granted, (i) one-third
of the unvested portion of all stock options granted to Executive subsequent to
the date of this Agreement shall become immediately exercisable as of the date
of Executive's death, (ii) a number of unvested stock options that were granted
to Executive on or prior to the date of this Agreement and that would otherwise
have vested during the one-year period following Executive's death shall become
immediately exercisable and (iii) all other unvested stock options held by
Executive shall be immediately canceled. Executive's estate shall have a period
of one year following Executive's death to exercise any vested stock options.
(e) If a Voluntary Termination due to Executive's becoming Disabled
during the term of this Agreement occurs, then notwithstanding anything to the
contrary in the Executive's stock option agreement(s) or certificate(s) or in
the stock option plan(s) under which Executive's stock options were granted, (i)
one-third of the unvested portion of all stock options granted to Executive
subsequent to the date of this Agreement shall become immediately exercisable as
of the date of Disability, (ii) a number of unvested stock options that were
granted to Executive on or prior to the date of this Agreement and that would
otherwise have vested during the one-year period following Executive's
Disability shall become immediately exercisable and (iii) all other unvested
stock options held by Executive shall be immediately canceled. Executive shall
have a period of one year following Executive's Disability to exercise any
vested stock options.
(f) If the Executive dies while any amounts are payable to him
hereunder, all such amounts, unless otherwise provided herein, shall be paid to
the Executive's designated beneficiary, or, if none, then to the Executive's
estate.
(g) Notwithstanding the foregoing, if the Executive breaches Sections
14, 15 or 17 hereof, any right of the Executive to receive termination payments,
to have the vesting of his options accelerated or to have the period during
which he may exercise his options extended under this Section 9 shall be
forfeited, but without prejudice to any exercise of options that may have
occurred prior to such forfeit, and the Executive shall reimburse the Company in
full for all termination payments made to the Executive under this Section 9 no
later than 30 days after the Company gives notice of such breach to the
Executive.
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10. Termination Following a Change in Control.
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(a) If at any time during the Severance Period following the
occurrence of a Change in Control the Company terminates Executive's employment,
the Executive shall be entitled to the benefits provided by Section 11 unless
such termination is the result of the occurrence of one or more of the following
events:
(i) The Executive's death;
(ii) The Executive's permanent disability within the
meaning of, and actual receipt of disability benefits pursuant to, the
long-term disability plan in effect for, or applicable to, Executive
immediately prior to the Change in Control; or
(iii) Cause.
(b) If at any time during the Severance Period following the
occurrence of a Change in Control the Executive terminates his employment with
the Company, the Executive shall be entitled to the benefits provided by Section
11 if one or more of the following events has occurred (regardless of whether
any other reason, other than Cause as hereinabove provided, for such termination
exists or has occurred, including without limitation other employment):
(i) Failure to elect or reelect or otherwise to maintain
the Executive in the office or the position, or a substantially equivalent
office or position, of or with the Company, which the Executive held
immediately prior to a Change in Control, or if the Executive was a
Director of the Company immediately prior to the Change in Control, the
removal of the Executive as a Director of the Company (or any successor
thereto);
(ii) (A) a reduction in the aggregate of the Executive's
Base Pay and Incentive Pay received from the Company and any Subsidiary
from that earned immediately prior to the Change in Control or (B) the
termination or denial of the Executive's rights to Employee Benefits or a
reduction in the scope or value thereof from that earned immediately prior
to the Change in Control, any of which is not remedied by the Company no
later than 10 calendar days after receipt by the Company of written notice
from the Executive of such change, reduction or termination, as the case
may be;
(iii) A determination by the Executive (which determination
will be conclusive and binding upon the parties hereto if it was made in
good faith and in all events will be presumed to have been made in good
faith unless otherwise shown by the Company by clear and convincing
evidence) that a change in circumstances has occurred following a Change in
Control, including, without limitation, a change in the scope of the
business or other activities for which the Executive was responsible
immediately prior to the Change in Control, which has rendered the
Executive substantially unable to carry out, has substantially hindered
Executive's performance of, or has caused Executive to suffer a substantial
reduction in, any of the authorities, powers, functions, responsibilities
or duties attached to the position held by the Executive immediately prior
to the Change in Control, which situation is not remedied no later than 10
calendar days after receipt by the Company of written notice from the
Executive of such determination;
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(iv) The liquidation, dissolution, merger, consolidation
or reorganization of the Company or transfer of all or substantially all of
its business and/or assets, unless the successor or successors (by
liquidation, merger, consolidation, reorganization, transfer or otherwise)
to which all or substantially all of its business and/or assets have been
transferred (directly or by operation of law) assumed all duties and
obligations of the Company under this Agreement pursuant to Section 25(a);
(v) The Company relocates its principal executive
offices, or requires the Executive to have his principal location of work
changed, to any location that is in excess of 50 miles from the location
thereof immediately prior to the Change in Control, or requires the
Executive to travel away from his office in the course of discharging his
responsibilities or duties hereunder at least 20% more (in terms of
aggregate days in any calendar year or in any calendar quarter when
annualized for purposes of comparison to any prior year) than was required
of Executive in any of the three full years immediately prior to the Change
in Control without, in either case, his prior written consent; or
(vi) Without limiting the generality or effect of the
foregoing, any material breach of this Agreement by the Company or any
successor thereto which is not remedied by the Company within 10 calendar
days after receipt by the Company of written notice from the Executive of
such breach.
(c) A termination by the Company pursuant to Section 10(a) or by the
Executive pursuant to Section 10(b) will not affect any rights that the
Executive may have pursuant to any agreement, policy, plan, program or
arrangement of the Company providing Employee Benefits, which rights shall be
governed by the terms thereof, except for any rights to severance compensation
to which Executive may be entitled upon termination of employment under Section
9.
11. Severance Compensation.
----------------------
(a) If at any time during the Severance Period following the
occurrence of a Change in Control the Company terminates the Executive's
employment other than pursuant to Section 10(a) or the Executive terminates his
employment pursuant to Section 10(b),
(i) the Company shall, no later than five business days
after the Termination Date, pay to the Executive a lump sum payment in an
amount equal to one times the sum of (A) Base Pay (at the highest rate in
effect for any period prior to the Termination Date), plus (B) Incentive
Pay (determined in accordance with the standards set forth in Section
1(i));
(ii) the Company shall, for a period of twelve months
following the Termination Date (the "Continuation Period"), arrange to
provide the Executive with Employee Benefits that are welfare benefits (but
not stock option, stock purchase, stock appreciation or similar
compensatory benefits) substantially similar to those that the Executive
was receiving or entitled to receive immediately prior to the Termination
Date (or, if greater, immediately prior to the reduction, termination or
denial described in Section 10(b)(ii)), except that the level of any such
Employee Benefits to be provided to the Executive may be reduced in the
event of a corresponding reduction generally applicable to all recipients
of or participants in such Employee Benefits, which Continuation Period
will
11
be considered service with the Company for the purpose of determining
service credits and benefits due and payable to the Executive under the
Company's retirement income, supplemental executive retirement and other
benefit plans of the Company applicable to the Executive, his dependents or
his beneficiaries immediately prior to the Termination Date;
(iii) the Company shall provide the Executive with
outplacement services by a firm selected by the Executive, at the expense
of the Company in an amount up to 20% of the Executive's Base Pay; and
(iv) notwithstanding anything to the contrary in the
Executive's stock option agreement(s) or certificate(s) or in the stock
option plan(s) under which Executive's stock options were granted, (A) (i)
all of Executive's stock options that are outstanding as of the date hereof
and are not then exercisable shall become immediately exercisable and shall
terminate on the date one year from the Termination Date, and not earlier,
and (2) all stock options that may be granted to Executive after the date
hereof and are not then exercisable shall terminate on the Termination Date
and (B) Executive may exercise all or any of his options that are
exercisable from time to time until the date one year from the Termination
Date.
If and to the extent that any benefit described in Section 11(a)(ii) or (iii) is
not or cannot be paid or provided under any policy, plan, program or arrangement
of the Company or any Subsidiary, as the case may be, then the Company shall
itself pay or provide for the payment to the Executive, his dependents and
beneficiaries, of such Employee Benefits. Without otherwise limiting the
purposes or effect of Section 12, Employee Benefits otherwise receivable by the
Executive pursuant to Section 11(a)(ii) or (iii) shall be reduced to the extent
comparable welfare benefits are actually received by the Executive from another
employer during the Continuation Period following the Executive's Termination
Date, and any such benefits actually received by the Executive shall be reported
by the Executive to the Company.
(d) Without limiting the rights of the Executive at law or in equity,
if the Company fails to make any payment or provide any benefit required to be
made or provided hereunder on a timely basis, the Company shall pay interest on
the amount or value thereof at an annualized rate of interest equal to the so-
called composite "prime rate" as quoted from time to time during the relevant
period in the Midwest Edition of The Wall Street Journal. Such interest shall be
payable as it accrues on demand. Any change in such prime rate shall be
effective on and as of the date of such change.
(e) Notwithstanding any provision of this Agreement to the contrary,
the parties' respective rights and obligations under this Section 11 and under
Sections 12 and 16 shall survive any termination or expiration of this Agreement
or the termination of the Executive's employment following a Change in Control
for any reason whatsoever.
12. Limitation on Payments and Benefits. Notwithstanding any
-----------------------------------
provision of this Agreement to the contrary, if any amount or benefit to be paid
or provided under this Agreement would be an "Excess Parachute Payment," within
the meaning of Section 280G of the Internal Revenue Code of 1986, as amended
(the "Code"), or any successor provision thereto, but for the application of
this sentence, then the payments and benefits to be paid or provided under this
Agreement shall be reduced to the minimum extent necessary (but in no event to
less than zero) so
12
that no portion of any such payment or benefit, as so reduced, constitutes an
Excess Parachute Payment except that the foregoing reduction shall be made only
if and to the extent that such reduction would result in an increase in the
aggregate payment and benefits to be provided, determined on an after-tax basis
(taking into account the excise tax imposed pursuant to Section 4999 of the
Code, or any successor provision thereto, any tax imposed by any comparable
provision of state law, and any applicable federal, state and local income
taxes). The determination of whether any reduction in such payments or benefits
to be provided under this Agreement or otherwise that is required pursuant to
the preceding sentence shall be made at the expense of the Company, if requested
by the Executive or the Company, by the Company's independent accountants. The
fact that the Executive's right to payments or benefits may be reduced by reason
of the limitations contained in this Section 12 shall not of itself limit or
otherwise affect any other rights of the Executive other than pursuant to this
Agreement. In the event that any payment or benefit intended to be provided
under this Agreement or otherwise is required to be reduced pursuant to this
Section 12, the Executive shall be entitled to designate the payments and/or
benefits to be so reduced in order to give effect to this Section 12. The
Company shall provide the Executive with all information reasonably requested by
the Executive to permit the Executive to make such designation. In the event
that the Executive fails to make such designation within 10 business days of the
Termination Date, the Company may effect such reduction in any manner it deems
appropriate.
13. No Mitigation Obligation. The Company hereby acknowledges that it
------------------------
will be difficult and may be impossible for the Executive to find reasonably
comparable employment following the Termination Date and that the non-
competition covenant contained in Section 15 will further limit the employment
opportunities for the Executive. Accordingly, the Company acknowledges that the
payment of the severance compensation by the Company to the Executive in
accordance with the terms of this Agreement is reasonable and that the Executive
will not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor will any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise, except as expressly provided in the last
sentence of Section 11(a).
14. Confidentiality Agreement.
-------------------------
(a) The Executive acknowledges that in the course of his employment
by the Company, he will or may have access to and become informed of
confidential and secret information that is a competitive asset of the Company
("Confidential Information"), including, without limitation, (i) the terms of
agreements between the Company and its employees, customers (including, without
limitation, its investigative research sites) and suppliers, (ii) pricing
strategy, (iii) sales and marketing methods, (iv) product development ideas and
strategies, (v) personnel training and development programs, (vi) financial
results, (vii) strategic plans and demographic analyses, (viii) proprietary
computer and systems software and (ix) any non-public information concerning the
Company, its employees, suppliers and customers. Regardless of any actual or
alleged breach by the Company of this Agreement, the Executive shall keep all
Confidential Information in strict confidence and shall not directly or
indirectly make known, divulge, reveal, furnish, make available or use any
Confidential Information (except in the course of his regular authorized duties
on behalf of the Company) until and unless (x) such Confidential Information
becomes, through no fault of the Executive, generally known to the public or (y)
the Executive is required by law to make disclosure (after giving the Company
reasonable notice and an opportunity
13
to contest such requirement). The Executive's obligations under this Section 14
are in addition to, and not in limitation or preemption of, all other
obligations of confidentiality which the Executive may have to the Company under
general legal or equitable principles.
(b) Except in the ordinary course of the Company's business, the
Executive has not made and shall never make or cause to be made, any copies,
pictures, duplicates, facsimiles or other reproductions or recordings or any
abstracts or summaries including or reflecting Confidential Information. All
such documents and other property furnished to the Executive by the Company or
otherwise acquired or developed by the Company shall at all times be the
property of the Company. Upon a Voluntary Termination or Involuntary
Termination, the Executive shall return to the Company any such documents or
other property of the Company which are in the possession, custody or control of
the Executive.
15. Covenant not to Compete; No Inducement; No Solicitation. In
-------------------------------------------------------
consideration for the Executive's employment hereunder and the Company's
providing the Executive with confidential information and contacts with the
Company's customers and accounts,
(a) (i) during the term of the Employment Provisions and (i) (A)
after an Involuntary Termination for Cause, for a period of one year after such
Involuntary Termination, (B) after an Involuntary Termination other than for
Cause, during the Payment Period or (C) after a Voluntary Termination, if prior
to the date of the Voluntary Termination the Company agrees to pay Executive all
of the termination payments set forth in Section 9(a) hereof, for a period of
one year after such Voluntary Termination, the Executive shall not, without the
prior written consent of the Company (which consent may be withheld for any
reason or no reason), directly or indirectly or by action in concert with
others, own, manage, operate, join, control, perform consulting services for, be
employed by, participate in or be connected with any business, enterprise or
other entity (or the ownership, management, operation, or control of any such
business, enterprise or other entity) (a "Competing Enterprise") engaged
anywhere in the United States in the Restricted Business. Notwithstanding the
foregoing, Executive may make purely passive investments on behalf of himself,
his immediate family or any trust in public companies engaged in a Competing
Enterprise so long as the aggregate interest represented by such investments
does not exceed 1% of any class of the outstanding debt or equity securities of
any Competing Enterprise.
(b) (i) during the term of the Employment Provisions and (i) (A)
after an Involuntary Termination for Cause, for a period of one year after such
Involuntary Termination, (B) after an Involuntary Termination other than for
Cause, during the Payment Period or (C) after a Voluntary Termination, if prior
to the date of the Voluntary Termination the Company agrees to pay Executive all
of the termination payments set forth in Section 9(a) hereof, for a period of
one year after such Voluntary Termination, the Executive shall not, directly or
indirectly, in any capacity, on his own behalf or on behalf of any other firm,
person or entity, induce or attempt to induce any customer of the Company
(including, without limitation, any investigative research site) to cease doing
business in whole or in part with the Company, solicit the business of any such
customer for any Restricted Business or otherwise create any ill will or
negative publicity with respect to the Company.
(c) (i) during the term of the Employment Provisions and (i) (A)
after an Involuntary Termination for Cause, for a period of one year after such
Involuntary Termination, (B) after an Involuntary Termination other than for
Cause, during the Payment Period or (C) after a
14
Voluntary Termination, if prior to the date of the Voluntary Termination the
Company agrees to pay Executive all of the termination payments set forth in
Section 9(a) hereof, for a period of one year after such Voluntary Termination,
the Executive shall not, directly or indirectly, in any capacity, on his own
behalf or on behalf of any other firm, person or entity, undertake or assist in
the solicitation of any Company employee, including, without limitation,
solicitation of any employee to terminate his or her employment with the
Company.
(d) during a period ending one year following the Termination Date,
if the Executive has received or is receiving benefits under Section 11, the
Executive shall not, without the prior written consent of the Company, which
consent shall not be unreasonably withheld, engage in any Competitive Activity.
16. Legal Fees and Expenses. The Company intends that, except as set
-----------------------
forth below, the Executive shall not be required to incur legal fees and the
related expenses associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise because the
cost and expense thereof would substantially detract from the benefits intended
to be extended to the Executive hereunder. Accordingly, if the Executive
reasonably believes that the Company has failed to comply with any of its
obligations under this Agreement or the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable or
institutes any litigation or other action or proceeding designed to deny, or to
recover from, the Executive the benefits provided or intended to be provided to
the Executive hereunder, the Company irrevocably authorizes the Executive from
time to time to retain counsel of Executive's choice, at the expense of the
Company as hereafter provided, to advise and represent the Executive in
connection with any such interpretation, enforcement or defense, including
without limitation the initiation or defense of any litigation or other legal
action, whether by or against the Company or any Director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and such counsel, the Company irrevocably consents to the Executive's
entering into an attorney-client relationship with such counsel, and in that
connection the Company and the Executive agree that a confidential relationship
shall exist between the Executive and such counsel. The Company will pay and be
solely financially responsible for any and all attorneys' and related fees and
expenses incurred by the Executive in connection with any of the foregoing up to
a maximum amount of $50,000 without respect to whether the Executive prevails,
in whole or in part, in connection with any of the foregoing (which payments
shall be made on a regular, periodic basis upon presentation to the Company of a
statement or statements prepared by such counsel in accordance with its
customary practices) and will reimburse the Executive and be financially
responsible for any and all attorneys' fees and related fees and expenses in
excess of such $50,000 amount incurred by the Executive in connection with any
of the foregoing thereafter if the Executive prevails in connection therewith.
17. Post-termination Assistance. Executive shall provide such
---------------------------
information and assistance to the Company as the Company may reasonably request,
upon reasonable notice, in connection with any litigation in which it or any of
its affiliates is or may become a party. The Company shall reimburse the
Executive for any expenses, including travel expenses, incurred by the Executive
in connection with providing such information and assistance.
18. Employment Rights. Nothing expressed or implied in this Agreement
-----------------
shall create any right or duty on the part of the Company or the Executive to
have the Executive remain
15
in the employment of the Company prior to or following any Change in Control.
Any termination of employment of the Executive or the removal of the Executive
from the office or position in the Company following the commencement of any
discussion with a third person that ultimately results in a Change in Control
shall be deemed to be a termination or removal of the Executive after a Change
in Control for purposes of this Agreement.
19. Withholding of Taxes. The Company may withhold from any amounts
--------------------
payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
20. Specific Enforcement. The Executive acknowledges and agrees that
--------------------
a violation of Sections 14, 15 or 17 hereof that results in material detriment
to the Company would cause irreparable harm to the Company, and that the
Company's remedy at law for any such violation would be inadequate. In
recognition of the foregoing, the Company shall have the right, in addition to
any other relief afforded by law or this Agreement, including damages sustained
by a breach of this Agreement and any forfeitures under Section 9, and without
any necessity or proof of actual damages, to enforce this Agreement by specific
remedies, including, among other things, temporary and permanent injunctions, it
being the understanding of the Company and the Executive that damages, the
forfeitures described above and injunctions shall all be proper modes of relief
and shall not be considered alternative remedies.
21. Arbitration. Any dispute between the parties under this Agreement
-----------
shall be resolved (except as provided below) through informal arbitration by an
arbitrator selected under the rules of the American Arbitration Association
(located in Chicago, Illinois) and the arbitration shall be conducted in that
location under the rules of said Association. Each party shall be entitled to
present evidence and argument to the arbitrator. The arbitrator shall have the
right only to interpret and apply the provisions of this Agreement and may not
change any of its provisions. The arbitrator shall permit reasonable pre-hearing
discovery of facts to the extent necessary to establish a claim or a defense to
a claim, subject to supervision by the arbitrator. The determination of the
arbitrator shall be conclusive and binding upon the parties and judgment upon
the same may be entered in any court having jurisdiction thereof. The arbitrator
shall give written notice to the Company and the Executive stating its
determination, and shall furnish to each party a signed copy of such
determination. The expenses of arbitration shall be borne equally by the
Executive and the Company or as the arbitrator shall otherwise equitably
determine.
Notwithstanding the foregoing, the Company shall not be required to
seek or participate in arbitration regarding any breach of Sections 14, 15 or
17, but may pursue its remedies for such breach in any court of competent
jurisdiction in the State of Illinois. Any arbitration or action pursuant to
this Section 21 shall be governed by and construed in accordance with the
substantive laws of the State of Illinois, without giving effect to the
principles of conflict of laws of such State.
22. Notices. For all purposes of this Agreement, all communications,
-------
including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder shall be in writing and shall be deemed to
have been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof confirmed), or five business days after
having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having been sent by a
nationally recognized overnight
16
courier service (such as Federal Express or UPS) addressed to the Company (to
the attention of the Secretary of the Company) at its principal executive office
and to the Executive at his principal residence, or to such other address as
either party may have furnished to the other in writing and in accordance
herewith, except that notices of changes of address shall be effective only upon
receipt.
23. Governing Law. The validity, interpretation, construction and
-------------
performance of this Agreement shall be governed by and construed in accordance
with the substantive laws of the State of Illinois, without giving effect to the
principles of conflict of laws of such State.
24. Agreement. This Agreement supersedes any and all other
---------
agreements, including, without limitation, the Existing Agreement, either oral
or in writing, between the parties hereto with respect to the subject matter
hereof and contains all of the covenants and agreements between the parties with
respect to such subject matter. Each party to this Agreement acknowledges that
no representations, inducements, promises, or other agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of any party,
pertaining to the subject matter hereof, that are not embodied herein, and that
no other agreement, statement or promise pertaining to the subject matter hereof
that is not contained in this Agreement shall be valid or binding on either
party.
25. Successors and Binding Agreement.
--------------------------------
(a) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) to
all or substantially all of the business or assets of the Company, by agreement
in form and substance satisfactory to the Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place. This
Agreement shall be binding upon and inure to the benefit of the Company and any
successor to the Company, including without limitation any persons acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company" for the purposes of
this Agreement), but will not otherwise be assignable, transferable or delegable
by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither the Company nor
the Executive shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 25(a) and 25(b). Without limiting the generality
or effect of the foregoing, the Executive's right to receive payments hereunder
will not be assignable, transferable or delegable, whether by pledge, creation
of a security interest, or otherwise other than by a transfer by the Executive's
will or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section 25(c), the Company
shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.
26. Validity. If any provision of this Agreement or the application
--------
of any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or
17
circumstances shall not be affected, and the provision so held to be invalid,
unenforceable or otherwise illegal shall be reformed to the extent (and only to
the extent) necessary to make it enforceable, valid or legal.
27. Miscellaneous. No provision of this Agreement may be modified,
-------------
waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or compliance with
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. Unless otherwise noted, references
to "Sections" are to sections of this Agreement. The captions used in this
Agreement are designed for convenient reference only and are not to be used for
the purpose of interpreting any provision of this Agreement.
28. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same agreement.
29. Effective Date. Notwithstanding anything to the contrary herein,
--------------
this Agreement shall not become effective unless and until the Board approves
this Agreement. Upon receipt of such approval, this Agreement shall become
immediately effective.
[Remainder of page intentionally left blank]
18
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written/1/.
AFFILIATED RESEARCH CENTERS, INC.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------
By: Xxxxxx X. Xxxxxxxx
Its: Chief Executive Officer
/s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx
___________________
/1/ The validity of execution of this Agreement on behalf of the Company is
subject to the approval of this Agreement by the Board.
