INTREPID HOLDINGS, INC. EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement (the “Agreement”) is entered into as of December
19, 2006, by and between Intrepid Holdings, Inc, a Nevada Corporation (the
“Company”) and Xxxxx X. Means (“Executive”).
1. Duties
and Scope of Employment.
(a) Positions
and Duties.
As of
the date of approval of this Agreement by the Board of Directors (the “Board”)
of the Company, (the “Effective Date”), Executive will serve as the President of
the Company and the Company’s wholly owned subsidiaries, My Healthy Access,
Inc., Rx Fulfillment Services, Inc., Intrepid Systems, Inc., My Discount Health
Plan, Inc., My Healthy Access Providers, PLLC and My Urban Clinic, Inc. As
President of each Company Executive will report to the CEO of Intrepid Holdings,
Inc. As of the Effective Date, Executive will render such business and
professional services in the performance of his duties, consistent with
Executive’s position within the Company, as will reasonably be assigned to him
by the Board. The period Executive is employed by the Company under this
Agreement is referred to herein as the “Employment Term”.
(b) Board
Membership.
As of
the Effective Date, Executive shall also serve as a Director of the Board.
At
each annual meeting of the Company’s stockholders during the Employment Term,
the Company will nominate Executive to serve as a member of the Board.
Executive’s service as a member of the Board will be subject to any required
stockholder approval. Upon the termination of Executive’s employment for any
reason, unless otherwise requested by the Board, Executive will be deemed to
have resigned from the Board (and all other positions held at the Company and
its affiliates voluntarily, without any further required action by Executive,
as
of the end of Executive’s employment and Executive, at the Board’s request, will
execute any documents necessary to reflect his resignation.
(c) Obligations.
During
the Employment Term, Executive will devote Executive’s full business efforts and
time to the Company and will use good faith efforts to discharge Executive’s
obligations under this Agreement to the best of Executive’s ability and in
accordance with each of the Company’s corporate guidance and ethics guidelines,
conflict of interests policies and code of conduct. For the duration of the
Employment Term, Executive agrees not to actively engage in any other
employment, occupation, or consulting activity for any direct or indirect
remuneration without the prior approval of the Board (which approval will not
be
unreasonably withheld); provided, however, that Executive may, without the
approval of the Board, serve in any capacity with any civic, educational, or
charitable organization, provided such services do not interfere with
Executive’s obligations to Company. Notwithstanding the foregoing, Executive
expects to serve as a member of the Board of Directors of not more than three
(3) corporations of his choice and such service will not constitute a violation
of this section 1(c), provided such services do not interfere with Executive’s
obligations to the Company.
(i) Executive
hereby represents and warrants to the Company that Executive is not party to
any
contract, understanding, agreement or policy, written or otherwise, that would
be breached by Executive’s entering into, or performing services under, this
Agreement. Executive further represents that he has disclosed to the Company
in
writing all threatened, pending, or actual claims that are unresolved and still
outstanding as of the Effective Date, in each case, against Executive of which
he is aware, if any, as a result of his membership on any boards of directors.
(d) Other
Entities.
Executive agrees to serve and will be appointed, without additional
compensation, as an officer and director for each of the Company’s subsidiaries,
partnerships, joint ventures, limited liability companies and other affiliates,
including entities in which the Company has a significant investment as
determined by the Company. As used in this Agreement, the term “affiliates” will
include any entity controlled by, controlling, or under common control of the
Company.
2. At-Will
Employment.
Executive and the Company agree that Executive’s employment with the Company
constitutes “at-will” employment. Executive and the Company acknowledge that
this employment relationship may be terminated at any time, upon written notice
to the other party, with or without good cause or for any or no cause, at the
option either of the Company or Executive. However, as described in this
Agreement, Executive may be entitled to severance benefits depending upon the
circumstances of Executive’s termination of employment.
3. Compensation.
(a) Base
Salary.
For the
period beginning on the Effective Date and ending December 31, 2006, the Company
will pay Executive an annual salary of $110,000 as compensation for his services
(such annual salary, as is then effective, to be referred to herein as “Base
Salary”). Thereafter, Executive’s Base Salary shall be increased to $204,000 per
annum. The Base Salary will be paid periodically in accordance with the
Company’s normal payroll practices and be subject to the usual, required
withholdings.
(b) Interim
Period Bonus; Annual Incentive.
Executive will be eligible to receive annual cash incentives payable for the
achievement of performance goals established by the Board or by the Compensation
Committee of the Board (the “Committee”). During the Employment Term,
Executive’s
target annual incentive (“Target Annual Incentive”) will be not less than 25% of
Base Salary, with a maximum potential opportunity of 200% of Base Salary. The
actual earned annual cash incentive, if any, payable to Executive for any
performance period will depend upon the extent to which the applicable
performance goal(s) specified by the Committee are achieved or exceeded and
will
be adjusted for under- or over-performance.
(c) Stock
Options.
(i) On
the
Effective Date, Executive will be granted nonstatutory stock options to purchase
up to 1,000,000 shares of Company common stock at a per share exercise price
equal to the last sale price displayed by the OTC Bulletin Board for the common
stock of the Company on the Effective Date (the “Option Grant”). The Option
Grant will be granted under and subject to the terms, definitions and provisions
of the Company’s 2005 Stock Plan for Directors,
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Officers
and Consultants (the “Plan”) and will be scheduled to vest at a rate of 33% on
each anniversary of the grant over three (3) years assuming Executive’s
continued employment with the Company on each scheduled vesting date. Except
as
provided in this Agreement, the Option Grant will be subject to the Company’s
standard terms and conditions for options granted under the Plan. The Company
must hold a reserve and/or take the appropriate action to make adjustments
to
the Plan to provide for Executive’s options.
(ii) On
the
Effective Date, Executive will be granted 250,000 shares of restricted stock
(the “Restricted Stock Grant”). The Restricted Stock Grant will be granted under
and subject to the terms, definitions and provisions of the Company’s Plan, and
will vest at the rate of 50 % immediately and 25% at 6 months from October
18,
2006 and 25% 12 months from October 2006 assuming Executive’s continued
employment with the Company on each scheduled vesting date. Except as provided
in this Agreement, the Restricted Stock Grant will be subject to the Company’s
standard terms and conditions for restricted stock granted under the
Plan.
(iii) The
Company will use its commercially reasonable best efforts to register all shares
covered by the Option Grant, and the Restricted Stock Grant on Form S-8 as
soon
as administratively practicable following the Effective Date.
4. Employee
Benefits.
(a) Generally.
Executive will be eligible to participate in accordance with the terms of all
Company employee benefit plans, policies and arrangements that are applicable
to
other executive officers of the Company, as such plans, policies and
arrangements may exist from time to time.
(b) Vacation.
Executive will be entitled to receive paid annual vacation in accordance with
Company policy for other senior executive officers. In no event will Executive
receive less than four (4) weeks of paid vacation time per calendar
year.
5. Expenses.
The
Company will reimburse Executive for reasonable travel, entertainment and other
expenses incurred by Executive in the furtherance of the performance of
Executive’s duties hereunder, in accordance with the Company’s expense
reimbursement policy as in effect from time to time.
6. Termination
of Employment.
In the
event Executive’s employment with the Company terminates for any reason,
Executive will be entitled to any (a) unpaid Base Salary accrued up to the
effective date of termination; (b) unpaid, but earned and accrued annual
incentive for any completed fiscal year as of his termination of employment;
(c) pay for accrued but unused vacation; (d) benefits or compensation
as provided under the terms of any employee benefit and compensation agreements
or plans applicable to Executive (e) unreimbursed business expenses
required to be reimbursed to Executive, and (f) rights to indemnification
Executive may have under the Company’s Articles of Incorporation, Bylaws, the
Agreement, or separate indemnification agreement, as applicable. In addition,
if
the termination is by the Company without Cause or Executive resigns for Good
Reason, Executive will be entitled to the amounts and benefits specified in
Section 7.
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7. Severance.
(a) Termination
Without Cause or Resignation for Good Reason other than in Connection with
a
Change of Control.
If
Executive’s employment is terminated by the Company without Cause or if
Executive resigns for Good Reason, and such termination is not in Connection
with a Change of Control, then, subject to Section 8, Executive will
receive: (i) continued payment of the aggregate of Executive’s Base Salary plus
the Target Annual Incentive for the year in which the termination occurs (less
applicable tax withholdings) for twelve (12) months, such amounts to be paid
out
bi-weekly in accordance with the Company’s normal payroll policies; (ii) [full]
vesting with respect to Executive’s then outstanding, unvested equity awards
(other than any awards that vest based on performance), and
(iii) reimbursement
for premiums paid for continued health benefits for Executive (and any eligible
dependents) under the Company’s health plans until the earlier of (i) twelve
(12) months, payable when such premiums are due (provided Executive validly
elects to continue coverage under the Consolidated Omnibus Budget Reconciliation
Act (“COBRA”), or (ii) the date upon which Executive and Executive’s
eligible dependents become covered under similar plans.
(b) Termination
Without Cause or Resignation for Good Reason in Connection with a Change of
Control.
If
Executive’s employment is terminated by the Company without Cause or by
Executive for Good Reason, and the termination is in Connection with a Change
of
Control, then, subject to Section 8, Executive will receive: (i) continued
payment of the aggregate of Executives’ Base Salary plus the Target Annual
Incentive for the year in which the termination occurs (less applicable tax
withholdings), for twenty-four (24) months, such amounts to be paid out
bi-weekly in accordance with the Company’s normal payroll policies; (ii) [full]
vesting with respect to Executive’s then outstanding unvested equity awards
(other than any awards that vest based on performance), and (iii) reimbursement
for premiums paid for continued health benefits for Executive (and any eligible
dependents) under the Company’s health plans until the earlier of (i)
twenty-four (24) months, payable when such premiums are due (provided Executive
validly elects to continue coverage under COBRA), or (ii) the date upon
which Executive and Executive’s eligible dependents become covered under similar
plans.
(c) Additional
Severance Payment.
If
Executive’s employment is terminated under Section 7(a) or 7(b) of this
Agreement, then Executive will be entitled to an additional severance payment
of
$1,000,000 if within the first 12 months, $667,000 if within the second 12
months, and $334,000 if within the third 12 months of this Agreement
respectively.
(d) Voluntary
Termination Without Good Reason or Termination for Cause.
If
Executive’s employment is terminated voluntarily without Good Reason or is
terminated for Cause by the Company, then, except as provided in Section 6,
(i) all further vesting of Executive’s outstanding equity awards will
terminate immediately; (ii) all payments of compensation by the Company to
Executive hereunder will terminate immediately, and (iii) Executive will be
eligible for severance benefits only in accordance with the Company’s then
established plans.
8. Conditions
to Receipt of Severance; No Duty to Mitigate.
(a) Separation
Agreement and Release of Claims.
The
receipt of any severance or other benefits pursuant to Section 7 will be
subject to Executive signing and not revoking a
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separation
agreement and release of claims in a form acceptable to the Company. No
severance or
other
benefits will
be
paid or provided until the separation agreement and release agreement becomes
effective.
(b) Non-solicitation
and Non-competition.
The
receipt of any severance or
other
benefits pursuant
to Section 7 will be subject to Executive agreeing that during the
Employment Term and
Continuance Period, Executive will not (i) solicit any employee of the Company
(other than Executive’s personal assistant) for employment other than at the
Company, or (ii) directly
or
indirectly engage in, have any ownership interest in or participate in any
entity that as of the date of termination, competes with the Company in any
substantial business of the Company or any business reasonably expected to
become a substantial business of the Company. Executive’s passive ownership of
not more than 1% of any publicly traded company and/or 5% ownership of any
privately held company will not constitute a breach of this Section 8(b). This
ownership restriction does not apply to any company, whether publicly traded
or
privately held, that does not compete with the Company.
(c) Nondisparagement.
During
the Employment Term and Continuance Period, Executive will not knowingly and
materially disparage, criticize, or otherwise make any derogatory statements
regarding the Company.
Notwithstanding
the foregoing, nothing contained in this agreement will be deemed to restrict
Executive, the Company or any of the Company’s current or former officers and/or
directors from providing information to any governmental or regulatory agency
(or in any way limit the content of any such information) to the extent they
are
requested or required to provide such information pursuant to applicable law
or
regulation.
(d) Other
Requirements.
Executive’s receipt of continued severance payments will be subject to Executive
continuing to comply with the terms of the Confidential Information Agreement
and the provisions of this Section 8.
(e) No
Duty to Mitigate.
Executive will not be required to mitigate the amount of any payment
contemplated by this Agreement, nor will any earnings that Executive may receive
from any other source reduce any such payment.
9. Excise
Tax Gross-Up.
In the
event that the benefits provided for in this Agreement constitute “parachute
payments” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”) and will be subject to the excise tax imposed by
Section 4999 of the Code, then Executive will receive (i) a payment from the
Company sufficient to pay such excise tax, and (ii) an additional payment from
the Company sufficient to pay the federal and state income and employment taxes
and additional excise taxes arising from the payments made to Executive by
the
Company pursuant to this sentence. Unless Executive and the Company agree
otherwise in writing, the determination of Executive’s excise tax liability, if
any, and the amount, if any, required to be paid under this Section 9 will
be
made in writing by the independent auditors who are primarily used by the
Company immediately prior to the Change of Control (the “Accountants”). For
purposes of making the calculations required by this Section 9, the Accountants
may make reasonable assumptions and approximations concerning applicable taxes
and may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. Executive and the Company
agree to furnish such information and documents as the Accountants may
reasonably request in order to make a determination under this Section 9.
The Company will
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bear
all
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this Section 9.
10. Definitions.
(a) Cause.
For
purposes of this Agreement, “Cause” will mean:
(i) Executive’s
willful and continued failure to perform the duties and responsibilities of
his
position after there has been delivered to Executive a written demand for
performance from the Board which describes the basis for the Board’s belief that
Executive has not substantially performed his duties and provides Executive
with
thirty (30) days to take corrective action;
(ii) Any
act
of personal dishonesty taken by Executive in connection with his
responsibilities as an employee of the Company with the intention or reasonable
expectation that such action may result in the substantial personal enrichment
of Executive;
(iii) Executive’s
conviction of, or plea of nolo contendere to, a felony that the Board reasonably
believes has had or will have a material detrimental effect on the Company’s
reputation or business;
(iv) A
breach
of any fiduciary duty owed to the Company by Executive that has a material
detrimental effect on the Company’s reputation or business;
(v) Executive
being found liable in any Securities and Exchange Commission or other civil
or
criminal securities law action or entering any cease and desist order with
respect to such action (regardless of whether or not Executive admits or denies
liability);
(vi) Executive
(A) obstructing or impeding; (B) endeavoring to influence, obstruct or impede,
or (C) failing to materially cooperate with, any investigation authorized by
the
Board or any governmental or self-regulatory entity (an “Investigation”).
However, Executive’s failure to waive attorney-client privilege relating to
communications with Executive’s own attorney in connection with an Investigation
will not constitute “Cause”; or
(vii) Executive’s
disqualification or bar by any governmental or self-regulatory authority from
serving in the capacity contemplated by this Agreement or Executive’s loss of
any governmental or self-regulatory license that is reasonably necessary for
Executive to perform his responsibilities to the Company under this Agreement,
if (A) the disqualification, bar or loss continues for more than thirty (30)
days, and (B) during that period the Company uses its good faith efforts to
cause the disqualification or bar to be lifted or the license replaced. While
any disqualification, bar or loss continues during Executive’s employment,
Executive will serve in the capacity contemplated by this Agreement to whatever
extent legally permissible and, if Executive’s employment is not permissible,
Executive will be placed on leave (which will be paid to the extent legally
permissible).
(b) Change
of Control.
For
purposes of this Agreement, “Change of Control” will mean the occurrence of any
of the following events:
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(i)The
consummation by the Company of a merger or consolidation of the Company with
any
other corporation, other than a merger or consolidation which would result
in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of the total
voting power represented by the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation;
(ii)The
approval by the stockholders of the Company, or if stockholder approval is
not
required, approval by the Board, of a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets;
(iii)Any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becoming the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly, of
securities of the Company representing 50% or more of the total voting power
represented by the Company’s then outstanding voting securities; or
(iv) A
change
in the composition of the Board, as a result of which fewer than a majority
of
the directors are Incumbent Directors. “Incumbent Directors” will mean directors
who either (A) are directors of the Company as of the date hereof, or (B) are
elected, or nominated for election, to the Board with the affirmative votes
of
at least a majority of those directors whose election or nomination was not
in
connection with any transactions described in subsections (i), (ii), or (iii)
or
in connection with an actual or threatened proxy contest relating to the
election of directors of the Company.
(c) Continuance
Period.
For
purposes of this Agreement, “Continuance Period” will mean the period of time
beginning on the date of the termination of Executive’s employment and ending on
the date on which Executive is no longer receiving Base Salary payments under
Section 7.
(d) Disability.
For
purposes of this Agreement, “Disability” will mean Executive’s absence from his
responsibilities with the Company on a full-time basis for 120 calendar days
in
any consecutive twelve (12) months period as a result of Executive’s mental or
physical illness or injury.
(e) Good
Reason.
For
purposes of this Agreement, “Good Reason” means the occurrence of any of the
following, without Executive’s express written consent:
(i) A
significant reduction of Executive’s duties, position, or responsibilities,
relative to Executive’s duties, position, or responsibilities in effect
immediately prior to such reduction;
(ii) A
substantial reduction by the Company of the facilities and perquisites
(including office space and location) available to Executive immediately prior
to such reduction;
(iii) A
material reduction in the kind or level of employee benefits to which Executive
is entitled immediately prior to such reduction with the result that Executive’s
overall benefits package is significantly reduced other than pursuant to a
reduction that also is applied to substantially all other executive officers
of
the Company;
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(iv) A
reduction in Executive’s Base Salary or annual cash incentive as in effect
immediately prior to such reduction other than pursuant to a reduction that
also
is applied to substantially all other executive officers of the Company and
which reduction reduces the Base Salary and/or annual cash incentive by a
percentage reduction that is no greater than 15%;
(v) The
relocation of Executive to a facility or location more than fifty (50) miles
from his current place of employment; or
(vi) The
failure of the Company to obtain the assumption of the employment agreement
by a
successor and an agreement that Executive will retain the same role and
responsibilities in the merged or surviving parent company as he had prior
to
the merger under Section 1 of this Agreement.
The
failure of the Company’s stockholders to elect or reelect Executive to the Board
will not constitute Good Reason for purposes of this Agreement.
(f) In
Connection with a Change of Control.
For
purposes of this Agreement, a termination of Executive’s employment with the
Company is “in Connection with a Change of Control” if Executive’s employment is
terminated within twelve (12) months following a Change of Control.
11. Indemnification.
Subject
to applicable law, Executive will be provided indemnification to the maximum
extent permitted by the Company’s Articles of Incorporation or Bylaws,
including, if applicable, any directors and officers insurance policies, with
such indemnification to be on terms determined by the Board or any of its
committees, but on terms no less favorable than provided to any other Company
executive officer or director and subject to the terms of any separate written
indemnification agreement.
12. Confidential
Information.
Executive will execute the Company’s standard form of confidential information,
intellectual property, non-competition and non-solicitation agreement, appended
hereto as Exhibit
A
(the
“Confidential Information Agreement”).
13. Assignment.
This
Agreement will be binding upon and inure to the benefit of (a) the heirs,
executors and legal representatives of Executive upon Executive’s death, and
(b) any successor of the Company. Any such successor of the Company will be
deemed substituted for the Company under the terms of this Agreement for all
purposes. For this purpose, “successor” means any person, firm, corporation, or
other business entity which at any time, whether by purchase, merger, or
otherwise, directly or indirectly acquires all or substantially all of the
assets or business of the Company. None of the rights of Executive to receive
any form of compensation payable pursuant to this Agreement may be assigned
or
transferred except by will or the laws of descent and distribution. Any other
attempted assignment, transfer, conveyance, or other disposition of Executive’s
right to compensation or other benefits will be null and void.
-8-
14. Notices.
All
notices, requests, demands and other communications called for hereunder will
be
in writing and will be deemed given (a) on the date of delivery if
delivered personally; (b) one (1) day after being sent overnight by a
well-established commercial overnight service, or (c) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses,
or
at such other addresses as the parties may later designate in
writing:
If
to the
Company:
Attn:
Chairman of the Compensation Committee
c/o
Corporate Secretary
0000
Xxxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
If
to
Executive:
at
the
last residential address known by the Company.
15. Severability.
If any
provision hereof becomes or is declared by a court of competent jurisdiction
to
be illegal, unenforceable, or void, this Agreement will continue in full force
and effect without said provision.
16. Arbitration.
The
Parties agree that any and all disputes arising out of the terms of this
Agreement, Executive’s employment by the Company, Executive’s service as an
officer or director of the Company, or Executive’s compensation and benefits,
their interpretation and any of the matters herein released, will be subject
to
binding arbitration. In the event of a dispute, the parties (or their legal
representatives) will promptly confer to select a Single Arbitrator mutually
acceptable to both parties. If the parties cannot agree on an Arbitrator, then
the moving party may file a Demand for Arbitration with the American Arbitration
Association (“AAA”) in Houston, Texas, who will be selected and appointed
consistent with the AAA-Employment Dispute Resolution Rules, except that such
Arbitrator must have the qualifications set forth in this paragraph. Any
arbitration will be conducted in a manner consistent with AAA National Rules
for
the Resolution of Employment Disputes, supplemented by the Texas Rules of Civil
Procedure. The Parties further agree that the prevailing party in any
arbitration will be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The
Parties hereby agree to waive their right to have any dispute between them
resolved in a court of law by a judge or jury. This
paragraph will not prevent either party from seeking injunctive relief (or
any
other provisional remedy) from any court having jurisdiction over the Parties
and the subject matter of their dispute relating to Executive’s obligations
under this Agreement and the Confidential Information Agreement.
17. Legal
Expenses.
The
Company will reimburse Executive for reasonable and actual legal expenses
incurred by him in connection with the negotiation, preparation and execution
of
this Agreement.
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18. Integration.
This
Agreement, together with the Confidential Information Agreement and the standard
forms of equity award grant that describe Executive’s outstanding equity awards,
represents the entire agreement and understanding between the parties as to
the
subject matter herein and supersedes all prior or contemporaneous agreements
whether written or oral. No waiver, alteration, or modification of any of the
provisions of this Agreement will be binding unless in a writing and signed
by
duly authorized representatives of the parties hereto. In entering into this
Agreement, no party has relied on or made any representation, warranty,
inducement, promise, or understanding that is not in this Agreement. To the
extent that any provisions of this Agreement conflict with those of any other
agreement to be signed upon Executive’s hire, the terms in this Agreement will
prevail.
19. Waiver
of Breach.
The
waiver of a breach of any term or provision of this Agreement, which must be
in
writing, will not operate as or be construed to be a waiver of any other
previous or subsequent breach of this Agreement.
20. Survival.
The
Confidential Information Agreement and the Company’s and Executive’s
responsibilities under Sections 7 and 8 will survive the termination of this
Agreement.
21. Headings.
All
captions and Section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.
22. Tax
Withholding.
All
payments made pursuant to this Agreement will be subject to withholding of
applicable taxes.
23. Governing
Law.
This
Agreement will be governed by the laws of the state of Texas without regard
to
its conflict of laws provisions.
24. Acknowledgment.
Executive acknowledges that he has had the opportunity to discuss this matter
with and obtain advice from his private attorney, has had sufficient time to,
and has carefully read and fully understands all the provisions of this
Agreement, and is knowingly and voluntarily entering into this
Agreement.
25. Conditions.
This
offer is conditioned upon Executive providing to Company references relating
to
Executive’s employment in a form acceptable to the Company, and Company’s
satisfactory review of such references.
26. Code
Section 409A.
Notwithstanding
anything to the contrary in this Agreement, if the Company reasonably determines
that Section 409A of the Code will result in the imposition of additional tax
to
an earlier payment of any severance or other benefits otherwise due to Executive
on or within the six (6) month period following Executive’s termination, the
severance benefits will accrue during such six (6) month period and will become
payable in a lump sum payment on the date six (6) months and one (1) day
following the date of Executive’s termination. All subsequent payments, if any,
will be payable as provided in this Agreement.
27. Counterparts.
This
Agreement may be executed in counterparts, and each counterpart will have the
same force and effect as an original and will constitute an effective, binding
agreement on the part of each of the undersigned.
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IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of
the Company by a duly authorized officer, as of the day and year written
below.
COMPANY:
/s/
Xxxxx
Xxxxxxx
Date:
December 19, 2006
Xxxxx
Xxxxxxx,
Director
and Chairman of the Compensation Committee
EXECUTIVE:
/s/
Xxxxx X.
Means
Date:
December 19, 2006
Xxxxx
X.
Means
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