Exhibit 10.6
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is entered into as of the 7th day
of September, 2004 (the "Effective Date") by and between Provident Senior Living
Trust ("Provident Trust"), a Maryland real estate investment trust, and Xxxx X.
Xxxxx ("the Executive").
1. Employment. Provident Trust hereby agrees to employ the Executive, and
the Executive hereby agrees to accept such employment, for the period commencing
on the Effective Date and ending on the third anniversary of the Effective Date,
subject to earlier termination of in accordance with the terms of this Agreement
(the "Employment Period"). The Employment shall be automatically renewed for a
one-year period on the third anniversary of the Effective Date and on each
anniversary of the Effective Date thereafter, unless either party has notified
the other in writing at least three months prior to the expiration of the then
Employment Period that it does not want the Employment Period to so renew.
Unless prevented by sickness or disability, the Executive shall use his best and
most diligent efforts to promote the interests of Provident Trust and its
affiliates and shall devote his full business time and attention to his
employment under this Agreement. The Executive will not, without the prior
written approval of Provident Trust's Board of Trustees, engage in any other
business activity that would interfere with the performance of his duties,
services and responsibilities hereunder or that is in violation of policies
established by Provident Trust; provided, however, that this Agreement shall not
be interpreted as prohibiting the Executive from managing his personal affairs
or engaging in charitable or civic activities.
2. Title. At all times during the Employment Period, the Executive's title
shall be Senior Vice President, General Counsel and Secretary of Provident
Trust. The Executive shall have the powers, responsibilities and authorities of
Senior Vice President, General Counsel and Secretary, as established by custom
and practice or as otherwise determined by the Chief Executive Officer, and the
Executive shall report to the Chief Executive Officer.
3. Compensation. As compensation for the Executive's services under this
Agreement, Provident Trust shall pay the Executive a base salary at the rate of
$175,000 per year, payable in equal installments in accordance with Provident
Trust's practice. Beginning in the first quarter of 2005, the Executive's base
salary then in effect and other components of his compensation shall be reviewed
and, if appropriate, revised by Provident Trust's Board of Trustees (the "Board
of Trustees") no less frequently than annually, provided that the Executive's
annual base salary shall not be less than $175,000 during the Employment Period.
The Executive shall not participate in such compensation review or revision.
4. Annual Incentive. The Executive shall be eligible to participate in
Provident Trust's annual incentive bonus plan in accordance with its terms and
conditions as determined by the Board or a committee thereof from time to time.
During the Employment Period, the target amount of such bonus shall be 100% of
the Executive's base salary at the end of the prior calendar year. The actual
amount of the annual bonus shall be determined by the Board of Trustees (or a
committee thereof) and may be greater or lesser than the target amount for such
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year. In making such determination, the Board of Trustees or such committee will
consult with the Chief Executive Officer and President and will consider, among
other criteria, the Executive's performance, Provident Trust's overall economic
performance and Provident Trust's performance relative to its industry peers.
For award year 2004, the Executive shall be eligible for a bonus payable in
February 2005 or as soon thereafter as practicable.
5. Long-Term Incentives. The Executive shall be eligible to receive annual
awards under Provident Trust's Long Term Incentive Plan and under any
additional, replacement or successor long-term incentive compensation plans,
programs or arrangements applicable to senior-level executives. The form, amount
and grant date of any long-term incentives shall be determined by the Board of
Trustees (or a committee thereof). The Executive shall not participate in such
determination.
6. OP Award. Upon the Effective Date, the Executive also shall receive an
award of a partnership interest in PSLT OP, L.P., Provident Trust's operating
partnership ("Provident OP"). The terms and conditions of such award shall be as
described in Attachment "A" annexed hereto.
7. Participation in Other Benefit Plans. As an employee of Provident
Trust, the Executive shall be eligible to participate in Provident Trust's
employee benefit plans for its salaried employees on a basis comparable to
Provident Trust's other most senior executives, including but not limited to its
medical, dental, disability, life insurance, retirement and savings plans,
subject to any contribution requirements applicable to participants of such
plans and programs.
8. Other Benefits.
(a) During the Employment Period, the Executive is authorized to
incur reasonable business expenses in carrying out his duties and
responsibilities under this Agreement. Provident Trust shall reimburse him for
all such reasonable business expenses subject to and in accordance with the
terms and conditions of Provident Trust's policies applicable to senior
executives.
(b) Provident Trust shall indemnify and hold harmless the Executive
in the same amount and to the same extent as its other senior officers and
trustees for any action or inaction of the Executive while serving as an
officer, trustee or director of Provident Trust or any of its affiliates or, at
Provident Trust's request, as an officer or director of any other entity or as a
fiduciary of any benefit plan. Provident Trust shall cover the Executive under
directors and officers liability insurance both during and, while potential
liability exists, after termination of employment in the same amount and to the
same extent as Provident Trust covers its other senior officers, directors and
trustees.
(c) During the Employment Period, the Executive shall be entitled to
take four weeks of paid vacation during each calendar year, subject to and in
accordance with the terms and conditions of Provident Trust's vacation policies
applicable to senior executives. Executive
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recognizes his responsibilities to Provident Trust and its Affiliates and will
take those responsibilities into account when scheduling and taking vacations.
9. Full Settlement. Provident Trust's obligation to make the payments or
grant the benefits provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which Provident Trust may
have against the Executive or others, except as otherwise provided in this
Agreement. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable or benefits
granted to the Executive under any of the provisions of this Agreement and such
amounts or benefits shall not be reduced because the Executive obtains other
employment, except as otherwise provided in this Agreement, except that any
continued healthcare benefits provided for in subparagraphs 10(b) and 10(c)
shall be secondary to any coverage provided to the Executive and his spouse and
eligible dependents by any such other employment.
10. Termination.
(a) By Provident Trust for Cause. Upon written notice to the
Executive specifying the basis for such action, Provident Trust may discharge
the Executive and terminate this Agreement for Cause. As used in this paragraph,
"Cause" shall exist only if, after reasonable investigation, a majority of the
Board of Trustees (excluding the Executive), after providing the Executive (and
his counsel, if he so chooses) a reasonable opportunity to be heard, finds that
one or more of the following conditions exists: (i) an act or acts of personal
dishonesty or misrepresentation made by the Executive and intended to result in
substantial personal enrichment of the Executive at the expense of Provident
Trust; (ii) demonstrably willful and deliberate violations by the Executive of
the Executive's obligations under this Agreement; (iii) the Executive's gross
neglect (other than any such failure resulting from incapacity due to physical
or mental illness) or gross misconduct in carrying out his duties resulting, in
either case, in material economic harm to Provident Trust; (iv) the final,
non-appealable conviction by a court of law of, or plea of nolo contendere by,
the Executive of a felony. Upon Provident Trust's termination of this Agreement
for Cause, (i) the Executive shall forfeit any remaining equity awards granted
under paragraphs 5 and 6 hereof (whether or not vested) that have not yet been
exercised or become unrestricted (as applicable) as of the date of such
termination; (ii) Provident Trust shall have no obligation to provide severance
or separation pay to the Executive; and (iii) Provident Trust shall be relieved,
as of the effective date of the termination, from any further salary or
compensation payments to the Executive other than the payment of accrued or
vested benefits. For purposes of the foregoing sentence, the annual bonus
described in paragraph 4, and equity and incentive awards described in
paragraphs 5 and 6, shall not be deemed accrued or vested benefits.
(b) By Provident Trust without Cause or by Reason of Disability or
by the Executive for Good Reason. Upon written notice to the Executive,
Provident Trust may discharge the Executive and terminate this Agreement without
Cause at any time during the Employment Period. Upon written notice to the
Executive specifying the basis for such action, Provident Trust may discharge
the Executive and terminate this Agreement at any time during the Employment
Period by reason of Disability which, for purposes of this Agreement, means
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the failure of the Executive to carry out substantially and effectively
Executive's duties and responsibilities hereunder for a period in excess of
three consecutive months or six months in any 12-month consecutive period. Upon
written notice to Provident Trust specifying the basis for such action, the
Executive may terminate this Agreement during the Employment Period for Good
Reason which, for purposes of this Agreement, will arise only upon (i) any
material adverse change in the Executive's titles, powers, responsibilities,
authorities or reporting relationships, (ii) any material breach by Provident
Trust of any material provision of this Agreement, or (iii) the relocation of
the Executive's principal place of performance more than 20 miles from New York,
New York, or Princeton, New Jersey, in each case which occurs without the
Executive's prior written consent and which is not fully corrected within 30
days of written notice to the Board of Trustees. Upon termination of this
Agreement during the Employment Period either by Provident Trust without Cause
or by reason of Disability or by the Executive for Good Reason (as described
above), Provident Trust shall be relieved of any further salary or compensation
payments to the Executive other than the payment of accrued or vested benefits.
Notwithstanding the preceding sentence, in return for a general release and
waiver of claims, the Executive shall also be entitled to receive a severance
payment (subject to appropriate payroll and tax withholding and deductions)
equal in amount to one and one half (1.5) times the sum (one times the sum in
the case of termination by reason of Disability) of the Executive's then current
annual base pay plus the last annual bonus he received from Provident Trust
prior to such termination (annualized if not for a full year), and payment for
12 months by Provident Trust of the premium cost of COBRA continuation coverage
for him and any spouse and dependents who are eligible for COBRA continuation
coverage. Equity and equity-based incentives shall be governed by their terms.
The foregoing benefits shall be in lieu of any other severance payment or
arrangement under any Provident Trust plan, policy or practice, and the
severance portion of such benefits shall be paid in 18 equal monthly
installments (12 equal monthly installments in the case of termination by reason
of Disability) beginning on the last day of the month following the month in
which the Executive's employment with Provident Trust terminated; provided,
however, that upon the Executive's post-employment substantial or material
breach of any of his obligations set forth in paragraph 11 below, or upon
Provident Trust's learning after the termination of the Executive's employment
that the Executive either breached any such obligation during the Employment
Period, or engaged in conduct during the Employment Period that would have
warranted the termination of this Agreement for Cause under paragraph 10(a)
hereof, Provident Trust shall be relieved of the obligation to make any, or any
further, severance or COBRA payment or payments under this subparagraph 10(b).
(c) By Provident Trust without Cause or by the Executive for Good
Reason Following a Change in Control. If within two years of a "Change in
Control" as defined in Attachment "B" annexed hereto, the Executive's employment
with Provident Trust is terminated by Provident Trust without Cause or by the
Executive for Good Reason, Provident Trust shall be relieved of any further
salary or compensation payments to the Executive other than the payment of
accrued or vested benefits. Notwithstanding the preceding sentence, in return
for a general release and waiver of claims, the Executive shall be entitled to
receive (i) a lump sum severance payment (subject to appropriate payroll and tax
withholding and deductions) equal in amount to two times the sum of the
Executive's current annual base pay plus the last annual bonus he received from
Provident Trust prior to such termination (annualized if not for a full year),
and payment for 12 months by Provident Trust of the premium cost of COBRA
continuation
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coverage for him and any spouse and dependents who are eligible for COBRA
continuation coverage, and (ii) any remaining equity awards granted under
paragraph 5 or 6 hereof that have not yet become vested, exercisable or
unrestricted (as applicable) as of the date of such termination shall become
vested, exercisable or unrestricted (as applicable). The foregoing severance
benefits shall be in lieu of any other severance payment or arrangement under
any Provident Trust plan, policy or practice. If it shall be determined that any
payment or benefit provided to the Executive would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code, then the Executive shall
receive a "Tax Gross-Up Payment." A Tax Gross-Up Payment means an amount payable
to the Executive such that, after payment of any excise tax and any income taxes
on such gross-up amount, there remains a balance sufficient to pay the excise
tax being reimbursed.
(d) Continuing Obligations. The termination of this Agreement shall
not affect any of the Executive's post-employment obligations that may arise
under paragraph 11 below.
11. Noncompete, Nonsolicitation, Developments, Nondisparagement and
Confidentiality. In consideration for the compensation and benefits provided
pursuant to this Agreement, the Executive agrees:
(a) While the Executive is an employee of Provident Trust and for a
period of eighteen months after his employment by Provident Trust terminates,
the Executive will not (as an individual, principal, agent, employee, consultant
or otherwise) for any reason without Provident Trust's prior written consent,
directly or indirectly in any territory in which Provident Trust and/or any of
its affiliates does business and/or markets its products and services, engage in
activities competitive with, nor render services to any firm or business engaged
or about to become engaged in competition with, the business of Provident Trust,
which includes, but is not limited to, the ownership, operation, management,
leasing or financing of independent senior living, assisted senior living or
skilled nursing facilities located in the United States and any other business
in which Provident Trust and/or its any of its affiliates is then engaged
(hereinafter collectively, the "Business of Provident Trust"). In addition, the
Executive agrees not to have an equity interest in any such firm or business
other than as a less than 5% shareholder of a public corporation.
(b) During the Executive's employment with Provident Trust and for a
period of two years following the termination of his employment with Provident
Trust, he will not, directly or indirectly, (i) solicit or contact any customer
or targeted potential customer of Provident Trust and/or any of its affiliates
for the purpose of offering products or services that, directly or indirectly,
compete or interfere with the Business of Provident Trust and/or its any of its
affiliates, (ii) induce or attempt to induce, any employees, agents or other
consultants of Provident Trust and/or its any of its affiliates to do anything
from which the Executive is restricted by reason of this Agreement, (iii) offer
or aid others to offer employment to any employees, agents, or other consultants
of Provident Trust and/or its any of its affiliates, or (iv) provide services to
any customer or otherwise interfere with or disrupt any contractual or potential
contractual relationship between any customer and Provident Trust and/or any of
its affiliates.
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(c) The Executive and Provident Trust agree that, during the
Employment Period and following the termination of the Employment Period,
neither party will disparage the other, including Provident Trust's affiliates,
products, customers, clients, officers, employees, former employees,
representatives and agents, in any way whatsoever.
(d) All data, concepts, ideas, designs, findings, discoveries,
inventions, improvements, advances, methods, formulas, plans, programs (computer
or otherwise), practices, techniques, developments and relationships with
customers and prospective customers relating in any way to the present and/or
contemplated products, services, or business of Provident Trust (collectively
"Developments") that the Executive may conceive, make, invent or suggest during
or as a result of his employment by Provident Trust, whether acting alone or in
conjunction with others, shall be the sole and absolute property of Provident
Trust free of any rights of any kind on the part of the Executive. The Executive
shall promptly make full disclosure of all Developments to Provident Trust. The
Executive agrees to do all acts and things (including, among others, the
execution and delivery of patent and copyright applications and instruments of
assignment) deemed by Provident Trust to be necessary or desirable at any time
in order to effect the full assignment to Provident Trust of his rights, if any,
to such Developments.
(e) The Executive recognizes that, in connection with his employment
by Provident Trust, he may learn of, and/or it may be desirable or necessary for
Provident Trust to disclose to him confidential information ("Confidential
Information"). The Executive understands that Confidential Information is
valuable and propriety to Provident Trust (or to third parties that have
entrusted the Confidential Information to Provident Trust). The Executive agrees
that, except as required by his employment with Provident Trust, he will not at
any time, directly or indirectly, use, publish, communicate, describe,
disseminate, or otherwise disclose Confidential Information to any person or
entity without the express prior written consent of Provident Trust. The term
Confidential Information shall include, but shall not be limited to: (i)
customer lists, property lists, lists of potential customers or properties and
details of agreements with customers or regarding properties; (ii) acquisition,
expansion, marketing, financial and other business information and plans of
Provident Trust; (iii) research and development; (iv) data compiled by Provident
Trust; (v) computer programs; (vi) sources of supply; (vii) identity of
specialized consultants and contractors and Confidential Information developed
by them for Provident Trust; (viii) purchasing, operating and other cost data;
(ix) special customer needs, cost and pricing data; (x) employee information
(including, but not limited to, personnel, payroll, compensation and benefit
data and plans); and (xi) patient records and data, including all such
information recorded in manuals, memoranda, projections, minutes, plans,
drawings, designs, formula books, specifications, computer programs and records,
whether or not legended or otherwise identified by Provident Trust as
Confidential Information, as well as such information that is the subject of
meetings and discussions and not recorded. Confidential Information shall not
include such information that is generally available to the public (other than
as a result of a disclosure by the Executive) or that is disclosed to the
Executive by a third party under no obligation to keep such information
confidential.
(e) Upon the termination of the Executive's employment with
Provident Trust or upon Provident Trust's request, whichever is sooner, the
Executive shall immediately deliver
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to Provident Trust all plans, designs, listings, manuals, records, notebooks,
and similar repositories of or containing Confidential Information or other
documents and data relating to Provident Trust's products, services, or business
then in the Executive's possession or control or available from other persons
receiving such documents from the Executive, whether prepared by the Executive
or others. The Executive shall not retain any copies or abstracts of any such
documents. Upon the termination of the Executive's employment with Provident
Trust, the Executive shall immediately deliver to Provident Trust all Provident
Trust property in his possession or control including, but not limited to,
computer(s) and office equipment.
(f) Any substantial or material breach by the Executive of any of
the post-employment obligations set forth in this paragraph 11 shall terminate
any further post-employment obligations that Provident Trust may have relative
to providing post-employment compensation or benefits to the Executive and shall
result in the immediate expiration of any outstanding options, rights and other
awards, vested or unvested.
12. Applicable Law. Any question as to the scope, interpretation and
effect of this Agreement will be resolved under the substantive and procedural
laws of the State of New York and the United States.
13. Enforceability. All provisions and portions of this Agreement are
severable. If any provision or portion of this Agreement or the application of
any provision or portion of the Agreement shall be determined to be invalid or
unenforceable to any extent or for any reason, all other provisions and portions
of this Agreement shall remain in full force and effect and shall continue to be
enforceable to the fullest and greatest extent permitted by law.
14. No Representations. The Executive agrees that no promises, other than
the promises in this Agreement, have been made to him by or on behalf of
Provident Trust. He agrees that in executing this Agreement he is not relying
upon any statement or representation, other than those set forth herein, made by
or on behalf of Provident Trust concerning his employment by Provident Trust.
15. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of Provident Trust shall not be assignable by the
Executive. This Agreement shall inure to the benefit of and be enforceable by
the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
Provident Trust and its successors and assigns.
(c) Provident Trust shall 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 Provident Trust to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that Provident Trust would be required to perform it if no such
succession had taken place.
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16. Contingencies. This Agreement is contingent upon the successful (i.e.,
satisfactory to Provident Trust) completion of both a pre-employment drug screen
and a background check of the Executive prior to the Effective Date.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the Effective Date.
PROVIDENT SENIOR LIVING TRUST
By: /s/ Xxxxxxx X. Post
-------------------------
EXECUTIVE
/s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx
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ATTACHMENT A
SUMMARY OF PROVIDENT OP GRANT TERMS
Number of LTIP Units: 35,000
Purchase Price Per Unit: $0.25
Vesting: 1/3 of Units upon each of first three anniversaries of the Effective
Date, provided that the Executive remains in continuous service through
such anniversary
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ATTACHMENT B
A "Change in Control" shall mean the occurrence during the Employment
Period of any one of the following events:
(a) An acquisition (other than directly from Provident Trust) of any
common shares of beneficial interest, par value $.001 per share (the "Common
Shares"), of Provident Trust or other voting securities of Provident Trust by
any "Person" (for purposes of this Section only, as the term "person" is used
for purposes of Section 13(d) or 14(d) of the Exchange Act), immediately after
which such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%) or more of either
(i) the then outstanding Common Shares or (ii) the combined voting power of
Provident Trust's then outstanding voting securities entitled to vote for the
election of trustees or directors (the "Voting Securities"); provided, however,
in determining whether a Change in Control has occurred, Common Shares or Voting
Securities which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (A)
Provident Trust or (B) any corporation or other Person of which a majority of
its voting power or its voting equity securities or equity interest is owned,
directly or indirectly, by Provident Trust (for purposes of this definition, a
"Related Entity"), (ii) Provident Trust or any Related Entity, or (iii) any
Person in connection with a "Non-Control Transaction" (as hereinafter defined);
or
(b) The individuals who, on the Effective Date, are members of the Board
of Trustees of Provident Trust (the "Incumbent Board"), (i) cease for any reason
to constitute at least a majority of the members of the Board of Trustees of
Provident Trust, or (ii) following a Merger (as hereinafter defined), do not
constitute at least a majority of the Board of Trustees of (x) the Surviving
Corporation (as hereinafter defined), if fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Surviving
Corporation is not Beneficially Owned, directly or indirectly by a Parent
Corporation, or (y) if there is one or more Parent Corporations, the ultimate
Parent Corporation (as hereinafter defined); provided, however, that if the
election, or nomination for election by Provident Trust's common shareholders,
of any new director was approved by a vote of at least a majority of the
Incumbent Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided, further, however, that
no individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of an actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board of Trustees of Provident Trust (a "Proxy Contest"), including by reason of
any agreement intended to avoid or settle any Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization with or into Provident
Trust or a direct or indirect subsidiary of Provident Trust or in which
securities of Provident Trust are issued (a "Merger"), unless the Merger is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean:
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(A) the shareholders of Provident Trust immediately before
such Merger own directly or indirectly immediately following the Merger at least
fifty percent (50%) of the outstanding common shares and the combined voting
power of the outstanding voting securities of (x) the corporation resulting from
such Merger (the "Surviving Corporation"), if fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the Surviving
Corporation is not Beneficially Owned, directly or indirectly by another
corporation (a "Parent Corporation"), or (y) if there is one or more Parent
Corporations, the ultimate Parent Corporation;
(B) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for the Merger,
constitute at least a majority of the members of the Board of Trustees of, (x)
the Surviving Corporation, if fifty percent (50%) or more of the combined voting
power of the then outstanding voting securities of the Surviving Corporation is
not Beneficially Owned, directly or indirectly by a Parent Corporation, or (y)
if there is one or more Parent Corporations, the ultimate Parent Corporation;
and
(C) no Person other than (1) Provident Trust or another
corporation that is a party to the agreement of Merger, (2) any Related Entity,
or (3) any employee benefit plan (or any trust forming a part thereof) that,
immediately prior to the Merger, was maintained by Provident Trust or any
Related Entity, or (4) any Person who, immediately prior to the Merger had
Beneficial Ownership of twenty percent (20%) or more of the then outstanding
Common Shares or Voting Securities, has Beneficial Ownership, directly or
indirectly, of twenty percent (20%) or more of the combined voting power of the
outstanding voting securities or common shares of (x) the Surviving Corporation,
if fifty percent (50%) or more of the combined voting power of the then
outstanding voting securities of the Surviving Corporation is not Beneficially
Owned, directly or indirectly by a Parent Corporation, or (y) if there is one or
more Parent Corporations, the ultimate Parent Corporation.
(ii) A complete liquidation or dissolution of Provident Trust; or
(iii) The sale or other disposition of all or substantially all of
the assets of Provident Trust and its subsidiaries taken as a whole to any
Person (other than a transfer to a Related Entity or under conditions that would
constitute a Non-Control Transaction with the disposition of assets being
regarded as a Merger for this purpose or the distribution to Provident Trust's
shareholders of the stock of a Related Entity or any other assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the then outstanding Common Shares or
Voting Securities as a result of the acquisition of Common Shares or Voting
Securities by Provident Trust which, by reducing the number of Common Shares or
Voting Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons; provided, that if a Change in Control
would occur (but for the operation of this sentence) as a result of the
acquisition of Common Shares or Voting Securities by Provident Trust, and after
such share acquisition by
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Provident Trust, the Subject Person becomes the Beneficial Owner of any
additional Common Shares or Voting Securities which increases the percentage of
the then outstanding Common Shares or Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control shall occur.
Notwithstanding the foregoing, there shall not be a Change in Control if, in
advance of such event, the Executive agrees in writing that such event shall not
constitute a Change in Control.
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