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EXHIBIT 10(r)
AGREEMENT
Agreement made as of April 24, 1997, by and between Woolworth
Corporation, a New York corporation with its principal office at 000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Company") and M. Xxxxxxx Xxxxxxx, residing at 000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company believes that the establishment and maintenance
of a sound and vital management of the Company is essential to the protection
and enhancement of the interests of the Company and its shareholders; and
WHEREAS, the Company wishes to offer a form of protection to the
Executive, as one of a select group of officers and key employees of the Company
and its Affiliates, in the event the Executive's employment with the Control
Group terminates; and
WHEREAS, the Company also recognizes that the possibility of a
Change in Control of the Company, with the attendant uncertainties and risks,
might result in the departure or distraction of the Executive to the detriment
of the Company; and
WHEREAS, the Company wishes to induce the Executive to remain with
the Control Group, and to reinforce and encourage the Executive's continued
attention and dedication, when faced with the possibility of a Change in Control
of the Company; and
WHEREAS, this Agreement amends and supersedes any employment
agreement, severance plan, policy and/or practice of the Company in effect for
the Executive.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set
forth in this section as follows:
(a) "AFFILIATE" shall mean the Company and any entity
affiliated with the Company within the meaning of Code Section 414(b) with
respect to a controlled group of corporations, Code Section 414(c) with respect
to trades or businesses under common control with the Company, Code Section
414(m) with respect to affiliated service groups and any other entity required
to be aggregated with the Company under Section 414(o) of the Code. No entity
shall be treated as an Affiliate for any period during which it is not part of
the controlled group, under common control or otherwise required to be
aggregated under Code Section 414.
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(b) "BENEFICIARY" shall mean the individual designated by the
Executive, on a form acceptable by the Committee, to receive benefits payable
under this Agreement in the event of the Executive's death. If no Beneficiary is
designated, the Executive's Beneficiary shall be his or her spouse, or if the
Executive is not survived by a spouse, the Executive's estate.
(c) "BOARD" shall mean the Board of Directors of the Company.
(d) "BONUS" shall mean an amount equal to the target bonus
expected to be earned by the Executive under the Company's Annual Incentive
Compensation Plan and/or such other annual bonus plan or program that may then
be applicable to the Executive in a fiscal year, if the applicable target
performance goal is satisfied.
(e) "CAUSE" shall mean (with regard to the Executive's
termination of employment with the Control Group): (i) the refusal or willful
failure by the Executive to substantially perform his or her duties, (ii) with
regard to the Control Group or any of their assets or businesses, the
Executive's dishonesty, willful misconduct, misappropriation, breach of
fiduciary duty or fraud (other than good faith disputes involving expense
account items), or (iii) the Executive's conviction of a felony (other
than a traffic violation) or any other crime involving, in the sole discretion
of the Committee, moral turpitude.
(f) "CHANGE IN CONTROL" shall have the meaning set forth in
Appendix A attached hereto.
(g) "CODE" shall mean the Internal Revenue Code of 1986, as
amended and as hereafter amended from time to time.
(h) "COMMITTEE" shall mean the Compensation Committee of the
Board or an administrative committee appointed by the Compensation Committee.
(i) "COMPETITION" shall mean the (i) participating, directly
or indirectly, as an individual proprietor, stockholder, officer, employee,
director, joint venturer, investor, lender, or in any capacity whatsoever
(within the United States of America, or in any country where any of the
Executive's former employing members of the Control Group does business) in a
business in competition with any business conducted by any member of the Control
Group for which the Executive worked at any time, provided, however, that such
participation shall not include (A) the mere ownership of not more than one
percent (1%) of the total outstanding stock of a publicly held company; (B) the
performance of services for any enterprise to the extent such services are not
performed, directly or indirectly, for a business in which any of the Employee's
employing members of the Control Group is engaged; or (C) any activity engaged
in with the prior written approval of the Board or the Committee; or (ii)
intentional recruiting, soliciting or inducing, of any employee or employees of
the Control Group to terminate their employment with, or otherwise cease their
relationship with the former employing members of the Control Group where such
employee or employees do in fact so terminate their employment.
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(j) "CONTROL GROUP" shall mean the Company and its Affiliates.
(k) "GOOD REASON" shall mean (with respect to an Executive's
termination of employment with the Control Group): (i) any material demotion of
the Executive or any material reduction in the Executive's authority or
responsibility, except in each case in connection with the termination of the
Executive's employment for Cause or disability or as a result of the Executive's
death, or temporarily as a result of the Executive's illness or other absence;
(ii) a twenty percent (20%) or greater reduction in a twelve (12) month period
in the Executive's rate of base salary as payable from time to time; (iii) a
reduction in the Executive's annual bonus classification level other than in
connection with a redesign of the applicable bonus plan that affects all
employees at the Executive's bonus level; (iv) a failure of the Company to
continue in effect the benefits applicable to, or the Company's reduction of the
benefits applicable to, the Executive under any benefit plan or arrangement
(including without limitation, any pension, life insurance, health or disability
plan) in which the Executive participates as of the date of the Change in
Control without implementation of a substitute plan(s) providing materially
similar benefits in the aggregate to those discontinued or reduced, except for a
discontinuance of, or reduction under, any such plan or arrangement that is
legally required and/or generally applies to all executives of the Company of a
similar level, provided that in either such event the Company provides similar
benefits (or the economic effect thereof) to the Executive in any manner
determined by the Company; or (v) failure of any successor to the Company to
assume in writing the obligations hereunder.
(l) "SALARY" shall mean an Executive's base monthly cash
compensation rate for services paid to the Executive by the Company or an
Affiliate at the time of his or her termination of employment from the Control
Group. Salary shall not include commissions, bonuses, overtime pay, incentive
compensation, benefits paid under any qualified plan, any group medical, dental
or other welfare benefit plan, noncash compensation or any other additional
compensation but shall include amounts reduced pursuant to an Executive's salary
reduction agreement under Sections 125 or 401(k) of the Code (if any) or a
nonqualified elective deferred compensation arrangement to the extent that in
each such case the reduction is to base salary.
(m) "SEVERANCE BENEFIT" shall mean (i) in the case of the
Executive's termination of employment that does not occur within the twelve (12)
month period following a Change in Control, two (2) weeks' Salary plus prorated
Bonus multiplied by the Executive's Years of Service, with a minimum of
twenty-six (26) weeks; or (ii) in the case of an Executive's termination of
employment within the twelve (12) month period following a Change in Control,
two (2) weeks' Salary plus prorated Bonus multiplied by the Executive's Years of
Service, with a minimum of seventy-eight (78) weeks. The Executive's prorated
Bonus for one (1) week shall equal the Executive's Bonus divided by fifty-two
(52).
(n) "SEVERANCE PERIOD" shall mean (i) in the case of the
Executive's termination of employment that does not occur within the twelve (12)
month period following a Change in Control, two (2) weeks multiplied by the
Executive's Years of Service, with a minimum of twenty-six (26) weeks; or (ii)
in the case of an Executive's termination of employment within the twelve (12)
month period following a Change in Control, two (2) weeks multiplied by the
Executive's Years of Service, with a minimum of seventy-eight (78) weeks.
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(o) "YEAR OF SERVICE" shall mean each twelve (12) consecutive
month period commencing on the Executive's date of hire by the Company or an
Affiliate and each anniversary thereof in which the Executive is paid by the
Company or an Affiliate for the performance of full-time services as an
Executive. For purposes of this section, full-time services shall mean that the
Employee is employed for at least thirty (30) hours per week. A Year of Service
shall include any period during which an Employee is not working due to
disability, leave of absence or layoff so long as he or she is being paid by the
Employer (other than through any employee benefit plan). A Year of Service also
shall include service in any branch of the armed forces of the United States by
any person who is an Executive on the date such service commenced, but only to
the extent required by applicable law.
2. TERM. The initial term of this Agreement shall end on December
31 of the year following the year in which this Agreement is entered into. On
December 31 of each year, the term shall be automatically renewed for an
additional one (1) year so that the term shall then be for two years, unless
the Committee notifies the Executive prior to any December 31 that the term
shall not be renewed. Notwithstanding anything in this Agreement to the
contrary, if the Company becomes obligated to make any payment to the Executive
pursuant to the terms hereof at or prior to the expiration of this Agreement,
then this Agreement shall remain in effect until all of the Company's
obligations hereunder are fulfilled.
3. BENEFITS UPON TERMINATION. In the event the Executive's
employment with the Control Group is terminated without Cause or the Executive
terminates employment with the Control Group within sixty (60) days after the
occurrence of a Good Reason event with regard to the Executive, the Executive
shall be entitled to a Severance Benefit as set forth below.
(a) The Executive shall receive fifty percent (50%) of his or
her Severance Benefit in the form of a lump sum cash payment as soon as
administratively feasible following his or her termination of employment with
the Control Group, provided, however, that interest shall be payable beginning
on the tenth day following such termination of employment at the prime rate of
interest as stated in the Wall Street Journal.
(b) The Executive shall receive the remaining fifty percent
(50%) of his or her Severance Benefit in the form of a lump sum cash payment as
soon as administratively feasible following the one (1) year anniversary of the
Executive's termination of employment with the Control Group, subject to (c)
below, provided, however, that interest shall be payable beginning on the tenth
day following such termination of employment at the prime rate of interest as
stated in the Wall Street Journal.
(c) The Executive shall only be entitled to the portion of his
or her Severance Benefit described in (b) above if the Executive does not engage
in Competition during the one (1) year period following his or her termination
of employment with the Control Group and if the Executive has not materially
violated the provisions of Section 14 hereof. If the Executive does engage in
Competition or violates the provisions of Section 14 during such one (1) year
period, the portion of the Executive's Severance Benefit described in (b) above
shall be forfeited. If the restriction set forth in this subsection is found by
any court of competent jurisdiction to be unenforceable because it extends for
too long a period of time or over too great a range of activities or in too
broad a geographic area, it shall be interpreted to extend over the maximum
period of time, range of activities or geographic area as to which it may be
enforceable.
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(d) The Executive shall continue, to the extent permitted
under legal and underwriting requirements (if any), to participate during his or
her Severance Period in any group medical, dental or life insurance plan he or
she participated in prior to his or her termination of employment, under
substantially similar terms and conditions as an active Employee; provided
participation in such group medical, dental and life insurance benefits shall
correspondingly cease at such time as the Executive becomes eligible for a
future employer's medical, dental and/or life insurance coverage (or would
become eligible if the Executive did not waive coverage). Notwithstanding the
foregoing, the Executive may not continue to participate in such plans on a
pre-tax or tax-favored basis. Notwithstanding anything else herein, the
Executive shall not be entitled to any benefits during the Severance Period
other than the benefits provided in Section 3 herein and, without limiting the
generality of the foregoing, the Executive specifically shall not be entitled to
continue to participate in any group disability or voluntary accidental death or
dismemberment insurance plan he or she participated in prior to his or her
termination of employment. Without limiting the generality of the foregoing, the
Executive shall not accrue additional benefits under any pension plan of the
Employer (whether or not qualified under Section 401(a) of the Code) during the
Severance Period, provided, however, that payment of any Severance Benefit shall
be included in the Executive's earnings for purposes of calculating the
Executive's benefit under The Woolworth Retirement Plan, Woolworth Corporation
401(k) Plan, and Woolworth Corporation Excess Cash Balance Plan.
(e) In the event of the Executive's death after becoming
eligible for the portion of the Severance Benefit described in (a) above and
prior to payment of such amount, such portion of the Severance Benefit shall be
paid to the Executive's Beneficiary. In addition to the foregoing, in the event
of the Executive's death prior to payment of the portion of the Severance
Benefit described in (b) above, such amount shall be paid to the Executive's
Beneficiary, but only to the extent that the Executive satisfied the provisions
set forth in (c) above for the period following the Executive's termination of
employment with the Control Group and prior to his or her death.
(f) Notwithstanding anything else herein, to the extent the
Executive would be subject to the excise tax under Section 4999 of the Code on
the amounts in (a) or (b) above and such other amounts or benefits he or she
received from the Company and its Affiliates required to be included in the
calculation of parachute payments for purposes of Sections 280G and 4999 of the
Code, the amounts provided under this Agreement shall be automatically reduced
to an amount one dollar less than that, when combined with such other amounts
and benefits required to be so included, would subject the Executive to the
excise tax under Section 4999 of the Code, if, and only if, the reduced amount
received by the Executive, would be greater than the unreduced amount to be
received by the Executive minus the excise tax payable under Section 4999 of the
Code on such amount and the other amounts and benefits received by the Executive
and required to be included in the calculation of a parachute payment for
purposes of Sections 280G and 4999 of the Code.
4. NO DUTY TO MITIGATE/SET-OFF. The Company agrees that if the
Executive's employment with the Company is terminated during the term of this
Agreement, the Executive shall not be required to seek other employment or to
attempt in any way to reduce any amounts payable to the Executive by the Company
pursuant to this Agreement. Further, except to the extent provided for in
Section 3(c), the amount of the Severance Benefit provided for in this Agreement
shall not be reduced by any compensation earned by the Executive or benefit
provided to the Executive as the result of employment by another
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employer or otherwise. Except as otherwise provided herein, the Company's
obligations to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including without limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive. The Executive
shall retain any and all rights under all pension plans, welfare plans, equity
plans and other plans, including other severance plans, under which the
Executive would otherwise be entitled to benefits.
5. FUNDING. Severance Benefits shall be funded out of the general
assets of the Company as and when they are payable under this Agreement. The
Executive shall be solely a general creditor of the Company. If the Company
decides to establish any advance accrued reserve on its books against the future
expense of benefits payable hereunder, or if the Company is required to fund a
trust under this Agreement, such reserve or trust shall not under any
circumstances be deemed to be an asset of this Agreement.
6. ADMINISTRATION. This Agreement shall be administered by the
Committee. The Committee (or its delegate) shall have the exclusive right,
power, and authority, in its sole and absolute discretion, to administer, apply
and interpret the Agreement and to decide all matters arising in connection with
the operation or administration of the Agreement. Without limiting the
generality of the foregoing, the Committee shall have the sole and absolute
discretionary authority: (a) to take all actions and make all decisions with
respect to the eligibility for, and the amount of, benefits payable under the
Agreement; (b) to formulate, interpret and apply rules, regulations and policies
necessary to administer the Agreement in accordance with its terms; (c) to
decide questions, including legal or factual questions, relating to the
calculation and payment of benefits under the Agreement; (d) to resolve and/or
clarify any ambiguities, inconsistencies and omissions arising under the
Agreement; (e) to decide for purposes of paying benefits hereunder, whether,
based on the terms of this Agreement, a termination of employment is for Good
Reason or for Cause; and (f) except as specifically provided to the contrary
herein, to process and approve or deny benefit claims and rule on any benefit
exclusions. All determinations made by the Committee (or any delegate) with
respect to any matter arising under the Agreement shall be final, binding and
conclusive on all parties.
Decisions of the Committee shall be made by a majority of its
members attending a meeting at which a quorum is present (which meeting may be
held telephonically), or by written action in accordance with applicable law.
All decisions of the Committee on any question concerning the interpretation and
administration of the Agreement shall be final, conclusive and binding upon all
parties.
No member of the Committee and no officer, director or employee of
the Company or any other Affiliate shall be liable for any action or inaction
with respect to his or her functions under this Agreement unless such action or
inaction is adjudged to be due to gross negligence, willful misconduct or fraud.
Further, no such person shall be personally liable merely by virtue of any
instrument executed by him or her or on his or her behalf in connection with
this Agreement.
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The Company shall indemnify, to the full extent permitted by law and
its Certificate of Incorporation and By-laws (but only to the extent not covered
by insurance) its officers and directors (and any employee involved in carrying
out the functions of the Company under the Agreement) and each member of the
Committee against any expenses, including amounts paid in settlement of a
liability, which are reasonably incurred in connection with any legal action to
which such person is a party by reason of his or her duties or responsibilities
with respect to the Agreement, except with regard to matters as to which he or
she shall be adjudged in such action to be liable for gross negligence, willful
misconduct or fraud in the performance of his or her duties.
7. CLAIMS PROCEDURES. Any claim by the Executive or Beneficiary
("Claimant") with respect to participation, contributions, benefits or other
aspects of the operation of the Agreement shall be made in writing to the
Secretary of the Company or such other person designated by the Committee from
time to time for such purpose. If the designated person receiving a claim
believes, following consultation with the Chairman of the Committee, that the
claim should be denied, he or she shall notify the Claimant in writing of the
denial of the claim within ninety (90) days after his or her receipt thereof
(this period may be extended an additional ninety (90) days in special
circumstances and, in such event, the Claimant shall be notified in writing of
the extension). Such notice shall (a) set forth the specific reason or reasons
for the denial making reference to the pertinent provisions of the Agreement on
which the denial is based, (b) describe any additional material or information
necessary to perfect the claim, and explain why such material or information, if
any, is necessary, and (c) inform the Claimant of his or her right pursuant to
this section to request review of the decision.
A Claimant may appeal the denial of a claim by submitting a written
request for review to the Committee, within sixty (60) days after the date on
which such denial is received. Such period may be extended by the Committee for
good cause shown. The claim will then be reviewed by the Committee. A Claimant
or his or her duly authorized representative may discuss any issues relevant to
the claim, may review pertinent documents and may submit issues and comments in
writing. If the Committee deems it appropriate, it may hold a hearing as to a
claim. If a hearing is held, the Claimant shall be entitled to be represented by
counsel. The Committee shall decide whether or not to grant the claim within
sixty (60) days after receipt of the request for review, but this period may be
extended by the Committee for up to an additional sixty (60) days in special
circumstances. Written notice of any such special circumstances shall be sent to
the Claimant. Any claim not decided upon in the required time period shall be
deemed denied. All interpretations, determinations and decisions of the
Committee with respect to any claim shall be made in its sole discretion based
on the Agreement and other relevant documents and shall be final, conclusive and
binding on all persons.
8. INCOMPETENCY; PAYMENTS TO MINORS. In the event that the Committee
finds that a Participant is unable to care for his or her affairs because of
illness or accident, then benefits payable hereunder, unless claim has been made
therefor by a duly appointed guardian, committee, or other legal representative,
may be paid in such manner as the Committee shall determine, and the application
thereof shall be a complete discharge of all liability for any payments or
benefits to which such Participant was or would have been otherwise entitled
under this Agreement. Any payments to a minor pursuant to this Agreement may be
paid by the Committee in its sole and absolute discretion (a) directly to such
minor; (b) to the legal or natural guardian of such minor; or (c) to any other
person, whether or not appointed guardian of the minor, who shall have the care
and custody of such minor. The receipt by such individual shall be a complete
discharge of all liability under the Agreement therefor.
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9. WITHHOLDING. The Company shall have the right to make such
provisions as it deems necessary or appropriate to satisfy any obligations it
may have to withhold federal, state or local income or other taxes incurred by
reason of payments pursuant to this Agreement. In lieu thereof, the Employer
shall have the right to withhold the amount of such taxes from any other sums
due or to become due from the Employer to the Executive upon such terms and
conditions as the Committee may prescribe.
10. ASSIGNMENT AND ALIENATION. Except as provided herein, the
benefits payable under this Agreement shall not be subject to alienation,
transfer, assignment, garnishment, execution or levy of any kind, and any
attempt to cause any benefits to be so subjected shall not be recognized.
11. SUCCESSORS; BINDING AGREEMENT. In addition to any obligations
imposed by law upon any successor to the Company, the Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree in writing to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. This Agreement shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive shall die while any amount would still
be payable to the Executive hereunder if the Executive had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the Executive's Beneficiary, or the
executors, personal representatives or administrators of the Executive's estate.
12. MISCELLANEOUS. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set
forth in this Agreement. All references to sections of the Code or any other law
shall be deemed also to refer to any successor provisions to such sections and
laws.
13. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. CONFIDENTIALITY. The Executive shall not at any time during the
term of this Agreement, or thereafter, communicate or disclose to any
unauthorized person, or use for the Executive's own account, without the prior
written consent of the Board, any proprietary processes, or other confidential
information of the Company or any subsidiary concerning their business or
affairs, accounts or customers, it being understood, however, that the
obligations of this section shall not apply to the extent that the aforesaid
matters (a) are disclosed in circumstances in which the Executive is legally
required to do so, or (b) become generally known to and available for use by the
public other than by the Executive's wrongful act or omission.
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15. SEVERABILITY. If any provisions of this Agreement shall be
declared to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
16. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in New York, New York, or in such
other city in which the Executive is then located, in accordance with the rules
of the American Arbitration Association then in effect. The determination of the
arbitrators, which shall be based upon a de novo interpretation of this
Agreement (it being understood that any prior determination of the Committee
made under the provisions of Sections 6 or 7 hereof shall not be binding on the
arbitrators), shall be final and binding and judgment may be entered on the
arbitrators' award in any court having jurisdiction. The Company shall pay all
costs of the American Arbitration Association and the arbitrator.
17. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company or
any of its subsidiary companies and for which the Executive may qualify.
18. GOVERNING LAW. This Agreement shall be construed, interpreted,
and governed by the Employee Retirement Income Security Act of 1974, as amended.
To the extent not so governed, it shall be governed by the laws of the State of
New York (without reference to rules relating to conflicts of law).
19. TOP-HAT PLAN. This Agreement is intended to be a "top-hat"
welfare plan within the meaning of Department of Labor Regulation Section
2520.104-24.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Executive's hand has hereunto been set as of the date first set
forth above.
WOOLWORTH CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx
Title: President and Chief
Operating Officer
M. XXXXXXX XXXXXXX
/s/ M. Xxxxxxx Xxxxxxx
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APPENDIX A
CHANGE IN CONTROL
A Change in Control shall mean any of the following: (i) (A) the
making of a tender or exchange offer by any person or entity or group of
associated persons or entities (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934 (a "Person") (other than the
Company or its Affiliates) for shares of common stock of the Company pursuant to
which purchases are made of securities representing at least twenty percent
(20%) of the total combined voting power of the Company's then issued and
outstanding voting securities; (B) the merger or consolidation of the Company
with, or the sale or disposition of all or substantially all of the assets of
the Company to, any Person other than (a) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity) fifty
percent (50%) or more of the combined voting power of the voting securities of
the Company or such surviving or parent entity outstanding immediately after
such merger or consolidation; or (b) a merger or capitalization effected to
implement a recapitalization of the Company (or similar transaction) in which no
Person is or becomes the beneficial owner, directly or indirectly (as determined
under Rule 13d-3 promulgated under the Securities Exchange Act of 1934), of
securities representing more than the amounts set forth in (C) below; (C) the
acquisition of direct or indirect beneficial ownership (as determined under Rule
13d-3 promulgated under the Securities Exchange Act of 1934), in the aggregate,
of securities of the Company representing twenty percent (20%) or more of the
total combined voting power of the Company's then issued and outstanding voting
securities by any Person acting in concert as of the date of this Agreement;
provided, however, that the Board may at any time and from time to time and in
the sole discretion of the Board, as the case may be, increase the voting
security ownership percentage threshold of this item (C) to an amount not
exceeding forty percent (40%); or (D) the approval by the shareholders of the
Company of any plan or proposal for the complete liquidation or dissolution of
the Company or for the sale of all or substantially all of the assets of the
Company; or (ii) during any period of not more than two (2) consecutive years,
individuals who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has entered into
agreement with the Company to effect a transaction described in clause (i))
whose election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof.
