Exhibit 10.57
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of February 10, 1999, by and between Petro
Stopping Centers, L.P., a Delaware limited partnership (the "Company") and Xxxxx
X. Xxxxxxxx ("Executive").
IN CONSIDERATION of the premises and the mutual covenants set forth
below, the parties hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as
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Chairman, Chief Executive Officer and of the Company, and Executive hereby
accepts such employment, on the terms and conditions hereinafter set forth.
2. Term. The period of employment of Executive by the Company
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hereunder (the "Employment Period") shall commence on February 10, 1999 (the
"Commencement Date") and shall end on the third anniversary thereof, provided,
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that, commencing on the third anniversary hereof, and on each anniversary
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thereafter, the Employment Period shall automatically be extended for one (1)
additional year unless either party gives written notice not to extend this
Agreement not more than three (3) months before such extension would be
effectuated. The Employment Period may be sooner terminated by either party in
accordance with Section 6 of this Agreement.
3. Position and Duties. During the Employment Period, Executive
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shall serve as Chairman and Chief Executive Officer of the Company, and shall
report directly to the Board of Directors of the Company (the "Board"). Subject
to the supervisory powers of the Board, Executive shall have those powers and
duties normally associated with the position of Chairman and Chief Executive
Officer and such other powers and duties as may be prescribed by the Board and
the Third Amended and Restated Limited Partnership Agreement of the Company (the
"Partnership Agreement"), provided, that, such other powers and duties are
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consistent with Executive's position as Chairman and Chief Executive Officer of
the Company. Executive shall devote substantially all of his working time,
attention and energies during normal business hours (other than absences due to
illness or vacation) to the performance of his duties for the Company.
Notwithstanding the above, Executive shall be permitted, to the extent such
activities do not substantially interfere with the performance by Executive of
his duties and responsibilities hereunder or violate Section 10 of this
Agreement, to (i) manage Executive's personal, financial and legal affairs, and
(ii) to serve on civic or charitable boards or committees (it being expressly
understood and agreed that Executive's continuing to serve on any such board
and/or committees on which Executive is serving, or with which Executive is
otherwise associated, as of the Commencement Date (each of which has been
disclosed to the Company prior to the execution of this Agreement or will be
disclosed promptly thereafter), shall be deemed not to interfere with the
performance by Executive of his duties and responsibilities under this
Agreement).
4. Place of Performance. The principal place of employment of
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Executive shall be at the Company's principal executive offices in El Paso,
Texas or such other place as the Board may determine.
5. Compensation and Related Matters.
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(a) Base Salary. During the Employment Period, the Company shall
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pay Executive a base salary at the rate of not less than $420,000 per year
("Base Salary"). Executive's Base Salary shall be paid in approximately equal
installments in accordance with the Company's customary payroll practices.
Executive's Base Salary shall be subject to annual review by the compensation
committee of the Board for possible increase. If Executive's Base Salary is
increased by the Company, such increased Base Salary shall then constitute the
Base Salary for all purposes of this Agreement. Executive's Base Salary shall
not be decreased at any time during the Employment Period without his direct
written consent.
(b) Incentive Compensation.
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(i) Beginning with calendar year 1999, Executive shall
annually be eligible to receive a bonus (the "Bonus") pursuant to a
schedule to be mutually agreed upon between the Company and Executive,
provided, that, the amount of such Bonus and the performance criteria
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relating thereto shall be no less favorable than those set forth on
Schedule A hereof, and provided, further, that Executive's eligibility for,
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and the amount of, the Bonus is subject to the level of activity spent by
Executive with respect to the performance of his duties hereunder, all as
determined in the Board's sole discretion.
(ii) Each Bonus shall be paid 10 days following the
rendering of audited financial statements for the relevant calendar year
(the "Payment Date").
(c) Car. The Company will provide Executive with an automobile
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during the Employment Period.
(d) Expenses. The Company shall promptly reimburse Executive for all
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reasonable business expenses upon the presentation of reasonably itemized
statements of such expenses in accordance with the Company's policies and
procedures now in force or as such policies and procedures may be modified
with respect to all senior executive officers of the Company.
(e) Vacation.
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(i) Executive shall be entitled to four (4) weeks vacation
per year;
(ii) Unused vacation time may be carried forward from one
year to the next; and
(iii) Upon the termination of the Employment Period or non-
renewal of this Agreement, Executive shall be entitled to receive
compensation for all earned but unused vacation days to the extent
permitted by the Company's then current policy with respect to all senior
executive officers of the Company, with the exception that the
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Executive shall be allowed to carry forward and receive compensation upon
termination of up to four weeks of unused vacation from the previous year
(i.e. be paid on termination a maximum of eight weeks of unused vacation
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upon termination.)
(f) Services Furnished. During the Employment Period, the Company
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shall furnish Executive with office space, stenographic and secretarial
assistance and such other facilities and services comparable to those provided
to the Company's other senior executive officers.
(g) Welfare, Pension and Incentive Benefit Plan. During the
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Employment Period, Executive (and his spouse and dependents to the extent
provided therein) shall be entitled to participate in and be covered under all
the welfare benefit plans or programs maintained by the Company from time to
time for the benefit of its senior executives, including, without limitation,
the executive medical program, and all medical, hospitalization, dental,
disability, accidental death and dismemberment and travel accident insurance
plans and programs In addition, during the Employment Period, Executive shall be
eligible to participate in all pension, retirement, savings and other employee
benefit plans and programs maintained from time to time by the Company for the
benefit of its senior executives.
(h) Other Benefits. During the Employment Period, the Company shall
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provide Executive with the benefits described below:
(i) Life insurance for the Executive;
(ii) Tax preparation and financial planning assistance up
to a maximum of $20,000 value per year; and
(iii) Membership dues for membership at a country club of
Executive's choosing.
6. Termination. Executive's employment hereunder shall terminate
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upon the expiration of the Employment Period and may be terminated during the
Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon
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his death.
(b) Disability. If, as a result of Executive's incapacity due to
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physical or mental illness, Executive shall have been substantially unable to
perform his duties hereunder for an entire period of four (4) months or more
during any six (6) consecutive month period, and within thirty (30) days after
written Notice of Termination is given after such six (6) month period,
Executive shall not have returned to the substantial performance of his duties
on a fulltime basis, the Company shall have the right to terminate Executive's
employment hereunder for "Disability", and such termination in and of itself
shall not be, nor shall it be deemed to be, a breach of this Agreement.
(c) Cause. The Company shall have the right to terminate Executive's
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employment for Cause, and such termination in and of itself shall not be, nor
shall it be deemed
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to be, a breach of this Agreement. For purposes of this Agreement, the Company
shall have "Cause" to terminate Executive's employment upon Executive's:
(i) Conviction of, or plea of guilty or nolo contendere to,
a felony; or
(ii) Continued failure to use reasonable best efforts to
substantially perform his duties hereunder (other than such failure
resulting from Executive's incapacity due to physical or mental illness)
after demand for substantial performance is delivered by the Company in
writing that specifically identifies the manner in which the Company
believes Executive has not used reasonable best efforts to substantially
perform his duties; or
(iii) Misconduct (including, but not limited to, a breach of
the provisions of Section 10) that is materially economically injurious to
the Company or to any entity in control of, controlled by or under common
control with the Company ("Affiliates").
Cause shall not exist under paragraph (ii) or (iii) above unless and until the
Company has delivered to Executive a copy of a resolution duly adopted by a
majority of the Board (excluding Executive for purposes of determining such
majority) at a meeting of the Board called and held for such purpose (after
reasonable (but in no event less than thirty (30) days) notice to Executive and
an opportunity for Executive, together with his counsel, to be heard before the
Board), finding that in the good faith opinion of the Board, Executive was
guilty of the conduct set forth in paragraph (ii) or (iii) and specifying the
particulars thereof in detail. This Section 6(c) shall not prevent Executive
from challenging in any court of competent jurisdiction the Board's
determination that Cause exists or that Executive has failed to cure any act (or
failure to act) that purportedly formed the basis for the Board's determination.
(d) Without Cause. The Company shall have the right to terminate
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Executive's employment hereunder without Cause by providing Executive with a
Notice of Termination sixty (60) days prior to the date of termination of
employment, and such termination shall not in and of itself be, nor shall it be
deemed to be, a breach of this Agreement.
(e) Termination by Executive. Executive shall have the right to
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terminate his employment hereunder by providing the Company with a Notice of
Termination sixty (60) days prior to the date of termination of employment, and
such termination shall not in and of itself be, nor shall it be deemed to be, a
breach of this Agreement.
7. Termination Procedure.
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(a) Notice of Termination. Any termination of Executive's employment
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by the Company or by Executive during the Employment Period (other than
termination pursuant to Section 6(a)) shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 14. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
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(b) Date of Termination. "Date of Termination" shall mean (i) if
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Executive's employment is terminated by his death, the date of his death, (ii)
if Executive's employment is terminated pursuant to Section 6(b), thirty (30)
days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if Executive's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
8. Compensation Upon Termination or During Disability. In the event
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Executive is disabled or his employment terminates during the Employment Period,
the Company shall provide Executive with the payments and benefits set forth
below. Executive acknowledges and agrees that the payments set forth in this
Section 8 constitute liquidated damages for termination of his employment during
the Employment Period.
(a) Without Cause, Cause or By Executive. If Executive's employment
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is terminated by the Company without Cause, for Cause or by Executive:
(i) The Company shall pay Executive his Base Salary and,
to the extent required by law or the Company's vacation policy, his accrued
vacation pay through the Date of Termination, as soon as practicable
following the Date of Termination; and
(ii) The Company shall reimburse Executive pursuant to
Section 5(d) for reasonable expenses incurred, but not paid prior to such
termination of employment, unless such termination resulted from a
misappropriation of Company funds; and
(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance with
the terms and provisions of any agreements, plans or programs of the
Company.
(b) Disability. During any period that Executive fails to perform
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his duties hereunder as a result of incapacity due to physical or mental illness
("Disability Period"), Executive shall continue to receive his full Base Salary
set forth in Section 5(a) until his employment is terminated pursuant to Section
6(b); provided, however, that Executive's Base Salary shall be off-set on a
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dollar for dollar basis for each dollar Executive receives from Company provided
disability insurance benefits. In the event Executive's employment is terminated
for Disability pursuant to Section 6(b):
(i) The Company shall pay to Executive his Base Salary and
accrued vacation pay through the Date of Termination, as soon as
practicable following the Date of Termination provided, however, that
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Executive's Base Salary shall be off-set on a dollar for dollar basis for
each dollar Executive receives from Company provided disability insurance
benefits; and
(ii) The Company shall reimburse Executive pursuant to
Section 5(d), for reasonable expenses incurred, but not paid prior to such
termination of employment; and
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(iii) Executive shall be entitled to any other rights,
compensation and/or benefits as may be due to Executive in accordance with
the terms and provisions of any agreements, plans or programs of the
Company.
(c) Death. If Executive's employment is terminated by his death:
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(i) The Company shall pay in a lump sum to Executive's
beneficiary(ies), legal representative(s) or estate, as the case may be,
Executive's Base Salary through the Date of Termination and Executive's
beneficiary(ies), legal representative(s) or estate shall be entitled to
the Bonus, determined in accordance with Section 5(b), for the year in
which employment is terminated that Executive would have received had he
remained employed through the Payment Date for such Bonus, pro-rated to the
Date of Termination; and
(ii) The Company shall reimburse Executive's
beneficiary(ies), legal representative(s), or estate, as the case may be,
pursuant to Section 5(d), for reasonable expenses incurred, but not paid
prior to such termination of employment; and
(iii) Executive's beneficiary(ies), legal representative(s)
or estate, as the case may be, shall be entitled to any other rights,
compensation and benefits as may be due to any such persons or estate in
accordance with the terms and provisions of any agreements, plans or
programs of the Company.
9. Mitigation. Executive shall not be required to mitigate amounts
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payable under this Agreement by seeking other employment or otherwise, and there
shall be no offset against amounts due Executive under this Agreement on account
of subsequent employment except as specifically provided herein.
10. Confidential Information, Ownership of Documents, Non-
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Competition.
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(a) Confidential Information. Executive shall hold in a fiduciary
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capacity for the benefit of the Company all trade secrets and confidential
information, knowledge or data relating to the Company and its businesses and
investments, which shall have been obtained by Executive during Executive's
employment by the Company and which is not generally available public knowledge
(other than by acts by Executive in violation of this Agreement). Except as may
be required or appropriate in connection with his carrying out his duties under
this Agreement, Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or any legal process, or as is
necessary in connection with any adversarial proceeding against the Company (in
which case Executive shall use his reasonable best efforts in cooperating with
the Company in obtaining a protective order against disclosure by a court of
competent jurisdiction), communicate or divulge any such trade secrets,
information, knowledge or data to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of its
business or to perform duties hereunder.
(b) Removal of Documents: Rights to Product. All records, files,
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drawings, documents, models, equipment, and the like relating to the Company's
business, which Executive has control over shall not be removed from the
Company's premises without its written consent,
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unless such removal is in the furtherance of the Company's business or is
in connection with Executive's carrying out his duties under this Agreement
and, if so removed, shall be returned to the Company promptly after
termination of Executive's employment hereunder, or otherwise promptly
after removal if such removal occurs following termination of employment.
Executive shall assign to the Company all rights to trade secrets and other
products relating to the Company's business developed by him alone or in
conjunction with others at any time while employed by the Company.
(c) Non-Competition. During the employment of Executive with the
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Company pursuant to this Agreement and for the greater of (i) a one year
period following the termination of his employment for any reason or (ii)
the period of time set forth in the Partnership Agreement with respect to
the non-competition and non-solicitation provisions contained therein ((i)
and (ii) collectively referred to as the "Restricted Period"), Executive
agrees that without the Company's prior written consent, which may be
withheld in its absolute discretion, he will not, except as otherwise
permitted in the Partnership Agreement, enter into, be engaged or
interested in, as a principal, stockholder, director, trustee, partner,
officer, agent, employee, consultant, independent contractor, or otherwise,
any business or undertaking which directly compete with the truck stop
business of the Company, its affiliates or their successors within any
county where any of the Company, its affiliates, or their successors are
doing business, or has made definite plans for and has taken steps
preparatory to doing business; provided, however, that Employee's ownership
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of five percent (5%) or less of the capital stock of a public company that
competes with the Company shall not be prohibited by this covenant.
(d) Non-Solicitation. During the employment of Executive with the
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Company pursuant to this Agreement and during the Restricted Period,
Executive agrees that without the Company's prior written consent, which
may be withheld in its absolute discretion, he will not except as otherwise
permitted in the Partnership Agreement, (i) call upon any person who is, at
that time, an employee of the Company, any of its affiliates or their
successors in a managerial capacity for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company, any
of its affiliates or their successors, or (ii) solicit business from any
person or entity which is at that time a customer of the Company, any of
its affiliates or their successors.
(e) Injunctive Relief. In the event of a breach or threatened
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breach of this Section 10, Executive agrees that the Company shall be
entitled to injunctive relief in a court of appropriate jurisdiction to
remedy any such breach or threatened breach, Executive acknowledging that
damages would be inadequate and insufficient.
(f) Continuing Operation. Except as specifically provided in this
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Section 10, the termination of Executive's employment or of this Agreement
shall have no effect on the continuing operation of this Section 10.
(g) Reformation. In the event that any of the provisions of this
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Section 10 are not enforceable in accordance with their terms, Executive
and the Company agree that such Section shall be reformed to make such
Section enforceable in a manner which provides the Company the maximum
rights permitted by law.
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11. Indemnification.
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(a) General. The Company shall, to the extent provided in the
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Partnership Agreement, and to the maximum extent permitted by law, indemnify and
hold harmless Executive from any and all losses, damages, claims or expenses
that may be asserted against Executive at any time in connection with his
services for the Company, his employment hereunder or that may otherwise derive
from Executive's employment as contemplated hereby.
(b) Insurance. The Company may, but shall not be required to,
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maintain such insurance for the protection of its officers and directors as is
appropriate for entities engaged in the Company's business.
12. Legal Fees and Expenses. If any contest or dispute shall arise
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between the Company and Executive regarding any provision of this Agreement, the
Company shall reimburse Executive for all legal fees and expenses reasonably
incurred by Executive in connection with such contest or dispute, but only if
Executive is successful in respect of substantially all of Executive's claims
brought and pursued in connection with such contest or dispute. Such
reimbursement shall be made as soon as practicable following the resolution of
such contest or dispute (whether or not appealed) to the extent the Company
receives reasonable written evidence of such fees and expenses.
13. Successors: Binding Agreement.
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(a) Company's Successors. No rights or obligations of the Company
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under this Agreement may be assigned or transferred except that 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 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. As used in this Agreement,
"Company" shall mean the Company as herein before defined and any successor to
its business and/or assets (by merger, purchase or otherwise) which executes and
delivers the agreement provided for in this Section 13 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law.
(b) Executive's Successors. No rights or obligations of Executive
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under this Agreement may be assigned or transferred by Executive other than his
rights to payments or benefits hereunder, which may be transferred only by will
or the laws of descent and distribution. Upon Executive's death, this Agreement
and all rights of Executive hereunder shall inure to the benefit of and be
enforceable by Executive's beneficiary or beneficiaries, personal or legal
representatives, or estate, to the extent any such person succeeds to
Executive's interests under this Agreement. Executive shall be entitled to
select and change a beneficiary or beneficiaries to receive any benefit or
compensation payable hereunder following Executive's death by giving the Company
written notice thereof. In the event of Executive's death or a judicial
determination of his incompetence, reference in this Agreement to Executive
shall be deemed, where appropriate, to refer to his beneficiary(ies), estate or
other legal representative(s). If Executive should die following his Date of
Termination while any amounts would still be payable to him hereunder if
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he had continued to live, all such amounts unless otherwise provided herein
shall be paid in accordance with the terms of this Agreement to such person or
persons so appointed in writing by Executive, or otherwise to his legal
representative(s) or estate.
14. Notice. For the purposes of this Agreement, notices, demands
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and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when delivered either personally or
by United States certified or registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Executive:
Xxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx
00000
If to the Company:
Petro Stopping Centers, L.P.
Attention: General Counsel
0000 Xxxxxx Xxxxx
Xx Xxxx, Xxxxx
00000
with a copy to:
Xxxxxx X. Xxxxxx
Akin, Gump, Strauss, Xxxxx & Xxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be amended,
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modified, or waived unless such amendment or modification is agreed to in
writing signed by Executive and by a duly authorized officer of the Company, and
such waiver is set forth in writing and signed by the party to be charged. No
waiver by either party hereto at any time of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. The respective rights
and obligations of the parties hereunder of this Agreement shall survive
Executive's termination of employment and the termination of this Agreement to
the extent necessary for the intended preservation of such rights and
obligations.
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16. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Entire Agreement. This Agreement, set forth the entire agreement
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of the parties hereto in respect of the subject matter contained herein and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in respect of such
subject matter. Except as otherwise provided herein, any prior agreement of the
parties hereto in respect of the subject matter contained herein is hereby
terminated and cancelled, including, but not limited to, your current employment
agreement with the Company, if any.
18. Withholding. All payments hereunder shall be subject to any
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required withholding of Federal, state and local taxes pursuant to any
applicable law or regulation.
19. Noncontravention. The Company represents that the Company is
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not prevented from entering into, or performing this Agreement by the terms of
any law, order, rule or regulation, its by-laws or declaration of trust, or any
agreement to which it is a party, other than which would not have a material
adverse effect on the Company's ability to enter into or perform this Agreement.
20. Section Headings. The section headings in this Employment
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Agreement are for convenience of reference only, and they form no part of this
Agreement and shall not affect its interpretation.
21. Severability. If this Agreement or any portion thereof is, or
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the transactions contemplated hereby are, found to be inconsistent or contrary
to any valid applicable laws or official orders, rules and regulations, the
inconsistent or contrary provision shall be null and void and such laws, orders,
rules and regulations shall control and, as so modified, this Agreement shall
continue in full force and effect; provided, however, that nothing herein
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contained shall be construed as a waiver of any right to question or contest any
such law, order, rule or regulation in any forum having jurisdiction.
22. Governing Law. The provisions of this Agreement shall be
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construed in accordance with the laws of the State of Texas without regard to
its conflict of law principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
PETRO STOPPING CENTERS, L.P.
By:
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Xxxxx X. Xxxxxxxx
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SCHEDULE A
Incentive Compensation.
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(a) The Bonus shall be paid as a percent of Base Salary (as defined
in Section 5(a) of the Employment Agreement), based upon the achievements of
Target EBITDA, as provided in accordance with the following table:
TARGET EBITDA BONUS
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90% 20%
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95% 40%
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100% 60%
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105% 90%
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110% 120%
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In accordance with the above table, if EBITDA achieved for any calendar year
exceeds 90% Target EBITDA, but is less than 100% Target EBITDA, the Bonus shall
be such percentage of Base Salary between 20% and 60%, calculated on a straight-
line basis, as corresponds to the relative achievement of EBITDA, with 20%
corresponding to 90% Target EBITDA and 60% corresponding to 100% Target EBITDA.
If EBITDA achieved for any calendar year exceeds 100% Target EBITDA, but is less
than 110% Target EBITDA, the Bonus shall be such percentage of Base Salary
between 60% and 120%, calculated on a straight-line basis, as corresponds to the
relative achievement of EBITDA, with 60% corresponding to 100% Target EBITDA and
120% corresponding to 110% Target EBITDA. Notwithstanding the foregoing, if
greater than 110% Target EBITDA is achieved, the Board shall award an additional
Bonus beyond the formula Bonus provided above, in an amount that it shall
determine in its sole discretion.
(b) Target EBITDA shall be established annually by the Board, or, at
the discretion of the Board, by the Compensation Committee and in either event,
with the concurrence of Executive as to the amount of Target EBITDA thereby
established. In the event of an acquisition, disposition or other similar
extraordinary corporate event which would significantly alter the Target EBITDA
established for that year, the parties shall negotiate in good faith to set new
levels of Target EBITDA.
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