EXHIBIT 10.2
SENIOR MANAGEMENT EMPLOYMENT AGREEMENT
SENIOR MANAGEMENT EMPLOYMENT AGREEMENT, dated as of the 1st day of
November, 1998, between UTILX CORPORATION, a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxxx ("Executive").
RECITALS
A. Executive is currently employed by the Company or one of its
Subsidiaries.
B. The Board of Directors of the Company (the "Board") has determined
that it is appropriate to reinforce the continued attention and dedication of
certain members of the Company's management, including Executive, to their
assigned duties without distraction by the potentially disturbing
circumstances arising from a Change in Control of the Company (as defined in
the attached Schedule A).
AGREEMENTS
NOW, THEREFORE, in consideration of the covenants and agreements set
forth below, the Company and Executive agree as follows:
1. DEFINITIONS
Terms capitalized in this Agreement which are not otherwise defined shall
have the meanings assigned to such terms in Schedule A.
2. EFFECTIVENESS
Except with respect to Sections 6 through 9 of this Agreement, which
shall be effective immediately, this Agreement shall become effective
immediately upon a Change in Control, provided that Executive is employed by
the Company immediately before the Change in Control.
3. TERM
Unless earlier terminated as provided in this Agreement, the initial
term of this Agreement shall be from the date of this Agreement until its
second anniversary date. Unless earlier terminated or a Change in Control
occurs, on each annual anniversary date this Agreement shall automatically be
renewed for successive two-year terms. If a Change in Control occurs, this
Agreement shall expire on the second anniversary date of the Change in
Control, unless earlier terminated as provided in this Agreement.
4. BENEFITS UPON CHANGE IN CONTROL
Regardless of whether a Termination occurs, Executive shall be entitled
to the following payments and benefits following a Change in Control:
(a) SALARY AND BENEFITS.
(i) Executive shall receive an annual base salary not less than
the Executive's annual base salary in effect immediately before the Change in
Control, including any salary which Executive has earned but deferred, and an
annual bonus equal to at least the average of the three annual bonuses paid
to Executive in the three years before the Change in Control.
(ii) Executive shall be entitled to participate in all employee
expense reimbursement, incentive, savings and retirement plans, practices,
policies and programs (including any Company plan qualified under Section
401(a) of the Code) available to other peer executives of the Company and its
Subsidiaries. In no event, however, shall the benefits provided to Executive
under this item (ii) be less favorable, in the aggregate, than the most
favorable of those plans, practices, policies or programs in effect
immediately before the Change in Control.
(b) WELFARE PLAN BENEFITS. The Company shall, at the Company's
expense (except for the amount, if any, of any required employee contribution
that Executive would have had to contribute as an active employee under the
plan or program in effect on the date of the Change in Control), continue to
cover Executive (and his dependents) under the Company's life, disability,
health, dental and any other employee welfare benefit plans or programs, as
in effect on the date of the Change in Control. Alternatively, the Company
may provide Executive (and his dependents) with insurance coverage no less
favorable than these welfare benefits (such benefits or insurance, the
"Welfare Benefits").
(c) DEATH OF EXECUTIVE. If the Executive dies before Termination
but while employed by the Company or any Subsidiary, his spouse, if any, or
otherwise the personal representative of his estate, shall be entitled to
receive
(i) Executive's salary at the rate then in effect through the date
of death, as provided under the Company's pay policy,
(ii) any Accrued Benefits for the periods of service before the date
of death, and
(iii) Welfare Benefits for two (2) years following the date of death.
(d) DISABILITY OF EXECUTIVE. If Executive experiences a
Disability before Termination but while employed by the Company or any
Subsidiary, Executive shall be entitled to receive
(i) his salary at the rate then in effect through the date of the
determination of Disability, as provided under the Company's pay policy,
(ii) any Accrued Benefits for the periods of service before the
date of the determination of Disability,
(iii) payments under the Company's short- and long-term disability
plans following the determination of Disability, and
(iv) Welfare Benefits for two (2) years following the determination
of Disability.
(e) CAUSE; UPON EXPIRATION OF THIS AGREEMENT; OTHER THAN FOR GOOD
REASON. If, before Termination, the Company terminates Executive's
employment for Cause or upon expiration of this Agreement, or the Executive
terminates Executive's employment other than for Good Reason, Executive shall
be entitled to receive
(i) his salary at the rate then in effect through the date of the
termination, as provided under the Company's pay policy, and
(ii) any Accrued Benefits for the periods of service before the
date of the termination.
(f) WITHHOLDING. All payments under this Section 4 are subject to
applicable federal and state payroll withholding or other applicable taxes.
5. PAYMENTS AND BENEFITS UPON TERMINATION
Executive shall be entitled to the following payments and benefits
following Termination:
(a) TERMINATION PAYMENT. In recognition of Executive's past
services to the Company, the Company shall make a lump sum payment in cash to
Executive as severance pay equal to two (2) times the sum of:
(i) Executive's annual base salary in effect immediately before the
date of the Change in Control or the date of Termination, whichever salary is
higher, provided that if the Executive is a part-time employee on the date of
Termination, then the Company shall use Executive's base salary in effect
immediately before the date of Termination to calculate the payment under
this Section 5(a);
plus
(ii) a percentage of Executive's annual base salary specified in
subparagraph (i) above, equal to the percentage bonus paid to Executive for
the fiscal year ended immediately before the Change in Control. If
Termination occurs before the Company determines a percentage for a fiscal
year that has ended or Executive did not receive a percentage bonus in the
previous year, this percentage shall be ten percent (10%).
The Company shall pay all payments under this Section 5(a) (the
"Termination Payments") within ten (10) business days following the date of
Termination.
(b) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. Notwithstanding
the above, if all or any portion of the Termination Payments (either alone or
together with all other payments and benefits which Executive receives or is
then entitled to receive, pursuant to this Agreement or otherwise, from the
Company or any Subsidiary (all such payments and benefits, including the
Termination Payments, the "Termination Benefits")), would constitute a
Parachute Payment, then the payments to Executive under Section 5(a) shall be
increased (such increase, a "Gross-Up Payment"). The payments shall be
increased, however, only to the extent necessary to ensure that, after
Executive pays all taxes (including any interest or penalties imposed on
those taxes), including, without limitation, any income taxes and Excise Tax
imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Termination
Benefits.
The Company and Executive shall make the foregoing calculations at
the Company's expense. If no agreement on the calculations is reached within
thirty (30) business days after the date of Termination, then the accounting
firm which regularly audits the financial statements of the Company (the
"Auditors") shall review the calculations, at the Company's expense. The
determination of the Auditors shall be conclusive and binding on all parties.
Pending this determination, the Company shall continue to make all other
required payments to Executive at the time and in the manner provided in this
Agreement and shall pay the largest portion of such payments and benefits
that, in the Company's reasonable judgment, the Company may pay without
triggering the Excise Tax.
Because of the uncertainty in the application of Section 4999 of
the Code, the Company possibly may make Termination Payments or Gross-Up
Payments that should not be made (an "Overpayment") or may fail to make
additional Gross-Up Payments that should be made (an "Underpayment"). If the
Company and Executive determine, or if the Company and Executive do not reach
agreement, the Auditors determine, that the Company has made an Overpayment,
the Overpayment shall be treated for all purposes as a loan to Executive that
the Executive shall repay to the Company, together with interest at the
applicable federal rate provided for in section 7872(f)(2) of the Code. If
the Company and Executive determine, or if the Company and Executive do not
reach agreement, the Auditors determine, that the Company has made an
Underpayment, the Company shall promptly pay the Underpayment to or for the
benefit of Executive, together with interest at the applicable federal rate
provided for in section 7872(f)(2)(A) of the Code. The Company and Executive
shall give each other prompt written notice of any information that could
reasonably result in the determination that an Overpayment or Underpayment
has been made.
(c) ACCRUED BENEFITS. The Company shall make a lump sum payment
in cash to Executive in the amount of any Accrued Benefits for the periods of
service before the date of Termination.
(d) WELFARE PLAN BENEFITS. The Company shall, at the Company's
expense (except for the amount, if any, of any required employee contribution
that Executive would have had to contribute as an active employee under the
plan or program in effect on the date of Termination) continue to cover
Executive (and his dependents) with Welfare Benefits (as in effect on the
date of the Change in Control or, at the option of Executive, on the date of
Termination) for a period of one year following the date of Termination. At
the Company's option, in lieu of providing such Welfare Benefits, the Company
may make a lump sum cash payment equal to the then-present value of the cost
to the Company of the Welfare Benefits.
If during this one-year period, however, another employer provides
Executive with benefits substantially comparable to the benefits provided by
one or more of the Company's plans or programs, the Company shall reduce the
benefits it provides by the benefits provided by the other employer (unless a
lump sum payment has been made by the Company), but only to the extent of the
benefits otherwise payable under the corresponding Company employee welfare
benefit plan or program.
(e) DEATH OF EXECUTIVE. If the Executive dies after Termination
but before receiving all benefits and payments provided for by this Section
5, the Company shall pay the benefits to his spouse, if any, or otherwise to
the personal representative of his estate, unless Executive has otherwise
directed the Company in writing before his death.
(f) EXCLUSIVE SOURCE OF SEVERANCE PAY. Benefits provided under
this Agreement shall replace the amount of any severance payments to which
Executive would otherwise be entitled under any severance plan or policy
generally available to employees of the Company.
(g) NONSEGREGATION. No assets of the Company need be segregated
or earmarked to represent the liability for benefits payable under this
Agreement. The rights of any person to receive benefits under this Agreement
shall be only those of a general unsecured creditor.
(h) WITHHOLDING. All payments under this Section 5 are subject to
applicable federal and state payroll withholding or other applicable taxes.
6. ARBITRATION
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration in Seattle, Washington,
in accordance with the Rules of the American Arbitration Association then in
effect. A court in any jurisdiction may enter judgment on the arbitrator's
award.
7. CONFLICT IN BENEFITS
Except for the amount of any severance payments to which Executive would
otherwise be entitled under any severance plan or policy generally available
to employees of the Company, this Agreement shall not adversely affect, limit
or terminate any other agreement or arrangement between Executive and the
Company presently in effect or entered into in the future, including any
employee benefit plan under which Executive is entitled to benefits.
8. TERMINATION
(a) TERMINATION BEFORE A CHANGE IN CONTROL.
(i) At any time before a Change in Control, the Company may
terminate this Agreement upon thirty (30) days' prior written notice, in the
form of a Notice of Termination. This Agreement shall terminate on the
effective date specified in the Notice of Termination. If a Change in
Control occurs before the effective date, however, the Notice of Termination
shall have no force or effect.
(ii) At any time before a Change in Control, Executive may
terminate this Agreement upon thirty (30) days' prior written notice, in the
form of a Notice of Termination. This Agreement shall terminate upon the
effective date specified in the Notice of Termination, even if a Change in
Control occurs before the effective date.
(b) TERMINATION AFTER A CHANGE IN CONTROL. After a Change in
Control, either party may terminate this Agreement upon thirty (30) days'
prior written notice, in the form of a Notice of Termination.
(c) EFFECT OF TERMINATION. Even if this Agreement terminates or
expires, the Company shall remain liable for any rights or payments to which
Executive is entitled under this Agreement that arose before the expiration
or termination .
9. MISCELLANEOUS
(a) AMENDMENT. This Agreement may be amended only by written
agreement between Executive and the Company.
(b) NO MITIGATION. All payments and benefits to which Executive
is entitled under this Agreement shall be made and provided without offset,
deduction or mitigation on account of income Executive could or may receive
from other employment or otherwise, except as provided in Section 5(d) hereof.
(c) EMPLOYMENT NOT GUARANTEED. Nothing contained in this
Agreement, and no decision as to the eligibility for benefits or the
determination of the amount of any benefits, shall give Executive any right
to be retained in the employ of the Company or rehired, and the Company
specifically reserves its right and power to dismiss or discharge any
employee for any reason. Except as expressly provided in this Agreement, no
employee or any person claiming under or through him shall have any right,
interest, or benefit under this Agreement.
(d) LEGAL EXPENSES. In connection with any litigation,
arbitration or similar proceeding regarding the interpretation or enforcement
of any provision of this Agreement, whether or not instituted by the Company
or Executive, the prevailing party shall be entitled to recover from the
other party all related costs and expenses, including reasonable attorneys'
fees and disbursements. The Company shall pay prejudgment interest on any
money judgment Executive obtains as a result of such proceedings, calculated
at the published commercial interest rate of Seafirst Bank for its best
customers, as in effect from time to time, from the date that the Company
should have paid Executive under this Agreement.
(e) NOTICES. Any notices required under the terms of this
Agreement shall be effective when mailed, postage prepaid, by certified mail
and addressed to, in the case of the Company:
UTILX Corporation
00000 Xxxxxxx Xxxx, X.X. Xxx 00000
Xxxx, XX 98064-9709
Attention: Chief Financial Officer
and to, in the case of Executive:
Xxxxxxx X. Xxxxxxxxx
0000 Xxxx Xxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Either party may designate a different address by giving written notice of
change of address in the manner provided above.
(f) WAIVER; CURE. No waiver or modification of any or all of this
Agreement shall be effective against any party unless the party seeking to be
bound puts in writing and signs the waiver or modification. The parties
shall not construe a waiver of any breach of any
provision by any party on one occasion as a waiver of any subsequent breach,
and the parties shall not construe a waiver of any right or power by any
party on one occasion as a waiver of, or a bar to, the exercise of that right
or power on any other occasion. The breaching party may cure any breach of
this Agreement within ten (10) days of the date that the breaching party
receives written notice of the breach from the party asserting the breach.
(g) BINDING EFFECT; SUCCESSORS. Subject to the provisions in this
Agreement, nothing in this Agreement shall prevent the consolidation of the
Company with, or its merger into, any other corporation, or the sale by the
Company of all or substantially all of its properties and assets, or the
assignment of this Agreement by the Company in connection with any of the
foregoing actions. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the Company and Executive and their
respective heirs, legal representatives, successors and assigns. If the
Company shall be merged into or consolidated with another entity, the
provisions of this Agreement shall be binding upon and inure to the benefit
of the entity that survives the merger or results from the consolidation.
The Company shall require any successor (whether direct or indirect) to all
or substantially all business or assets of the Company, including the
successor to all or substantially all of the business or assets of any
Subsidiary, division or profit center of the Company, to expressly assume and
agree 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. The provisions of this Section 10(g) shall continue to apply to
each subsequent employer of Executive in the event of any subsequent merger,
consolidation or transfer of assets of the subsequent employer.
(h) SEVERABILITY. Any provision of this Agreement that an
arbitrator or court in any jurisdiction holds to be unenforceable or invalid
in any respect shall be ineffective in that jurisdiction to the extent that
it is unenforceable or invalid, without affecting the remaining provisions,
which shall continue in full force and effect. The unenforceability or
invalidity of any provision of this Agreement in one jurisdiction shall not
invalidate or render that provision unenforceable in any other jurisdiction.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Washington applicable
to contracts made and to be performed there.
IN WITNESS WHEREOF, the Company and Executive have executed this Agreement
as of the first date written above.
UTILX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Title: Director
--------
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxx
Schedule A
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CERTAIN DEFINITIONS
As used in this Agreement, and unless the context requires a different
meaning, the following terms have the meanings indicated:
"ACCRUED BENEFITS" means
(a) the aggregate of any compensation previously deferred by Executive
(together with any accrued interest or earnings on that compensation), any
accrued vacation pay, and if the Termination occurs after the end of a Fiscal
Year for which a bonus is payable to Executive, that bonus (in each case to
the extent previously earned and not paid), plus
(b) an amount equal to the product of the bonus paid to Executive the
prior Fiscal Year and a fraction, the numerator of which is the number of
days since the end of the prior Fiscal Year, and the denominator of which is
365.
"BENEFICIAL OWNER" and "BENEFICIAL OWNERSHIP" have the meanings set
forth in Rules 13d-3 and 13d-5 of the Exchange Act.
"BOARD CHANGE" means that a majority of the seats (other than vacant
seats) on the Board have been occupied by individuals who were neither (a)
nominated or appointed by a majority of the Incumbent Directors nor (b)
nominated or appointed by directors so nominated or appointed.
"BUSINESS COMBINATION" means a reorganization, merger or consolidation
or sale of substantially all of the assets of the Company.
"CAUSE" means (a) willful misconduct on the part of Executive that has a
materially adverse effect on the Company and its Subsidiaries, taken as a
whole, (b) Executive's engaging in conduct which could reasonably result in
his conviction of a felony or a crime against the Company or involving
substance abuse, fraud or moral turpitude, or which would materially
compromise the Company's reputation, as determined in good faith by a written
resolution duly adopted by the affirmative vote of not less than two-thirds
of all of the directors who are not employees or officers of the Company, or
(c) unreasonable refusal by Executive to perform the duties and
responsibilities of his position in any material respect. No action, or
failure to act, shall be considered willful or unreasonable if the Executive
did it in good faith and with the reasonable belief that his action or
omission was in the best interests of the Company.
A "CHANGE IN CONTROL" occurs upon the happening of any one of the
following:
(a) A Board Change.
(b) The acquisition by any Person (whether directly or indirectly,
beneficially or of record) of (i) fifteen percent (15%) or more of the
combined voting power of the then-
outstanding voting securities of the Company, which a majority of the
Incumbent Directors has not approved in advance; or (ii) thirty-three percent
(33%) or more of the combined voting power of the then-outstanding voting
securities of the Company, which a majority of the Incumbent Directors has
approved in advance. The following acquisitions, however, shall not
constitute a Change in Control: (x) any acquisition by the Company, (y) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any company controlled by the Company, or (z)
any acquisition by any company pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation,
the conditions described in clauses (i), (ii) and (iii) of the following
subsection (c) are satisfied.
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation in which the Company is not the continuing or
surviving corporation, or pursuant to which shares of the Company's Common
Stock are converted into cash, securities or other property, unless following
the reorganization, merger or consolidation all of the following conditions
are satisfied:
(i) all or substantially all of the individuals and entities who were
the beneficial owners of the Company's voting securities immediately before
the reorganization, merger or consolidation then beneficially own, directly
or indirectly, at least sixty-six and two-thirds percent (66-2/3%) of the
then-outstanding shares of common stock of the company resulting from the
reorganization, merger or consolidation and the combined voting power of the
then-outstanding voting securities of the resulting company; and
(ii) no Person (excluding the Company, any employee benefit plan (or
related trust) of the Company or the company resulting from such
reorganization, merger or consolidation and excluding any Person beneficially
owning, directly or indirectly, immediately before the reorganization, merger
or consolidation, thirty-three percent (33%) or more of the Company's voting
securities) beneficially owns, directly or indirectly, thirty-three percent
(33%) or more of either the then-outstanding shares of common stock of the
company resulting from the reorganization, merger or consolidation or the
combined voting power of the then-outstanding voting securities of the
resulting company; and
(iii) at least a majority of the members of the board of directors of
the company resulting from the reorganization, merger or consolidation were
members of the Incumbent Board at the time of the execution of the initial
agreement providing for the reorganization, merger or consolidation.
(d) Approval by the Company's shareholders of:
(i) any plan or proposal for liquidation or dissolution of the Company; or
(ii) any sale, lease, exchange or other transfer in one transaction or a
series of transactions of all or substantially all of the assets of the
Company other than to a company where following such sale or other
disposition (A) all or substantially all of the individuals and entities who
were the beneficial owners of the Company's voting securities immediately
before the sale or other
disposition then beneficially own, directly or indirectly, at least sixty-six
and two-thirds percent (66-2/3%) of the then-outstanding shares of common
stock of that company and the combined voting power of the then-outstanding
voting securities of that company; (B) no Person (excluding the Company and
any employee benefit plan (or related trust) of the Company or that company
and any Person beneficially owning, directly or indirectly, immediately
before such sale or other disposition, thirty-three percent (33%) or more of
the Company's voting securities) beneficially owns, directly or indirectly,
thirty-three percent (33%) or more of either the then-outstanding shares of
common stock of that company or the combined voting power of the
then-outstanding voting securities of that company, and (c) a majority of the
incumbent board approved at least a majority of the members of the board of
directors of that company at the time of the execution of the initial
agreement or action of the board providing for the sale or other disposition
of assets of the company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DISABILITY" means that (a) a person has been incapacitated by bodily
injury or physical or mental disease so as to be prevented from performing
his duties with the Company for one hundred twenty (120) days in any twelve
(12) month period, and (b) that person is disabled for purposes of any and
all of the plans or programs of the Company or any Subsidiary that employs
Executive under which benefits, compensation or awards are contingent upon a
finding of disability. The determination of whether Executive is suffering
from such a Disability will be made by a mutually acceptable physician or, if
there is no physician mutually acceptable to the Company and Executive, by a
physician selected by the then Xxxx of the University of Washington Medical
School.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCISE TAX" means the excise tax, including any interest or penalties on
the excise tax, imposed by Section 4999 of the Code.
"FISCAL YEAR" means the twelve (12) month period ending on December 31 in
each year (or such other fiscal year period the Board establishes).
"GOOD REASON" means, without Executive's express written consent:
(a) (i) the assignment to Executive of duties, or limitation of
Executive's responsibilities, inconsistent with Executive's title,
position, duties, responsibilities and status with the Company or any
Subsidiary that employs Executive, as such duties and responsibilities
existed immediately before the date of the Change in Control, or
(ii) removal of Executive from, or failure to re-elect Executive to,
Executive's positions with the Company or any Subsidiary that employs
Executive immediately before the Change in Control, except in
connection with the involuntary termination of Executive's employment
by the Company for Cause or as a result of Executive's death or
Disability; or
(b) failure by the Company to pay, or reduction by the Company of,
Executive's annual base salary, as reflected in the Company's payroll
records for Executive's last pay period immediately before the Change
in Control;
(c) failure by the Company to pay, or reduction by the Company of,
Executive's salary and benefits or Welfare Benefits under Section 4(a)
or Section 4(b) of this Agreement;
(d) the relocation of the principal place of Executive's employment to a
location that is more than twenty-five (25) miles further from
Executive's principal residence than Executive's principal place of
employment immediately before the Change in Control; or
(e) the breach of any material provision of this Agreement by the Company,
including, without limitation, failure by the Company to bind any
successor to the Company to the terms and provisions of this Agreement
in accordance with Section 9(g) of this Agreement.
"INCUMBENT DIRECTOR" means a member of the Board who has been either
(a) nominated by a majority of the directors of the Company then in office or
(b) appointed by directors so nominated, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule 14a-11
of Regulation 14A of the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board.
"NOTICE OF TERMINATION" means a written notice to Executive or to the
Company, as the case may be, which indicates the specific provisions in this
Agreement relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for the termination of Executive's
employment constituting a Termination, if any, under the indicated provisions.
"PARACHUTE PAYMENT" means any payment constituting a "parachute payment" as
defined in Section 280G of the Code.
"PERSON" means any individual, entity or group within the meaning of
Section 3(a)(9) or of Section 13(d)(3) (as in effect on the date of this
Agreement) of the Exchange Act.
"SUBSIDIARY" has the meaning set forth in Rule 12b-2 of the Exchange Act.
"TERMINATION" means, following any Change in Control by the Company, (a)
the involuntary termination of the employment of Executive for any reason
other than death, Disability or for Cause or (b) the termination of
employment by Executive for Good Reason.
"VOTING SECURITIES" means the voting securities entitled to vote
generally in the election of directors.
