Exhibit 10.2: Second Amended and Restated Employment Agreement between the
Company and Xxxxx X. Prima, dated July 1, 2004.
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"),
dated effective as of July 1, 2004, by and between The Peoples Publishing Group,
Inc., a Delaware corporation (the "Company"), and Xxxxx X. Prima, an individual
resident of the State of New Jersey (the "Executive").
WITNESSETH:
WHEREAS, the Company and the Executive previously entered into an
Employment Agreement, dated October 22, 2001 (the "2001 Agreement") and now
desire to terminate the 2001 Agreement; and
WHEREAS, the Company desires to continue to employ the Executive and the
Executive wishes to continue his employment with the Company upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the Company and the Executive agree as follows:
1. Employment. The 2001 Agreement is hereby terminated in its entirety and
replaced by this Agreement. The Company hereby employs the Executive as Senior
Vice President of Sales and the Parent (as defined below) hereby employs the
Executive as the Senior Vice President of Business Development, with such
additional operating titles as the Chief Executive Officer of the Company (the
"CEO") shall from time to time approve, and the Executive accepts such
employment and agrees to perform services for the Company and its Affiliates in
accordance with the requirements of the position, for the period and upon the
other terms and conditions set forth in this Agreement. The term "Affiliate" as
used in this Agreement shall mean any subsidiary or parent corporation of the
Company and any other corporation under common control with the Company,
including Peoples Educational Holdings, Inc., a Delaware corporation, or any
successor company (the "Parent").
2. Term. Unless terminated at an earlier date in accordance with Section
8, the initial term of the Executive's employment hereunder shall be for a
period of eighteen (18) months, commencing on the date hereof. Thereafter, the
term of this Agreement shall be automatically extended for successive one-year
periods unless either party objects to such extension by written notice to the
other party at least 90 days prior to the end of the initial term or any
extension term. Notwithstanding the foregoing, the terms of Sections 4.05
(Registration Rights), 5 (Confidential Information), 7 (Non-Competition), 8
(Termination), and 9 (Miscellaneous) shall survive the expiration or termination
of this Agreement (whether such expiration or termination occurs as a result of
the expiration of the term as provided herein, by mutual agreement, as a result
of the Executive's resignation, termination by the Company with or without
cause, or any other reason), and continue in full force and effect in accordance
with their terms.
3. Position and Duties.
3.01 Service with Company. During the term of this Agreement, the
Executive shall perform such duties for the Company and its Affiliates as the
CEO (or a designate of the CEO) shall assign to him from time to time. Without
limiting the generality of the foregoing, it is understood between the Company
and the Executive that while the primary functions of the Executive shall relate
to the Company's and its Affiliates' long-term organic sales growth, the
responsibilities of the Executive may also include the coordinating the
prospecting and execution of, and obtaining the financing for, acquisition
transactions for the Company or the Parent consistent with the Company's and the
Parent's objectives.
3.02 Performance of Duties. The Executive shall serve the Company
and its Affiliates faithfully and to the best of his ability, and devote his
full time, attention and efforts to the business and affairs of the Company and
its Affiliates during normal business hours (and outside normal business hours
as reasonably required) during the term of this Agreement. The Executive hereby
confirms that he is under no contractual commitments
inconsistent with his obligations set forth in this Agreement, and that during
the term of this Agreement he shall not render or perform services for any other
corporation, firm, entity or person.
4. Compensation.
4.01 Base Salary. As compensation for all services to be rendered by
the Executive under this Agreement during the first 12-month period during the
term of this Agreement, the Company shall pay to the Executive a base salary of
$140,000, which salary shall be paid in accordance with the Company's normal
payroll procedures and policies. The compensation payable to the Executive for
each 12-month period following the expiration of the initial 12-month period of
this Agreement shall be mutually agreed upon by the Company and the Executive
prior to the commencement of each such 12-month period based on the Executive's
performance, provided, however, that the base salary shall not be reduced unless
there is a downward adjustment in all executive salaries of the Company. The
Executive understands that executive salaries are subject to the approval of the
Parent's Board of Directors.
4.02 Incentive Compensation. In addition to the base salary
described in Section 4.01, the Executive shall be eligible to receive incentive
compensation as set forth in the Sales Manager Incentive Plan attached hereto as
Exhibit A and made part hereof. If the Executive's employment is terminated
pursuant to Sections 8.01(a)(iii) or 8.01(a)(iv) hereof, or if the Executive
voluntarily resigns other than for Good Reason, no such incentive compensation
shall be payable for the quarter or year in which such termination or
resignation occurred. If the Executive's employment is terminated pursuant to
Sections 8.01(a)(i), 8.01(a)(ii) or 8.01(b) hereof, the Company shall pay the
Executive a pro rated incentive bonus up through the date of termination for the
quarter and year in which such termination occurred, payable promptly after the
Company's and its Affiliates' consolidated audited financial statements for the
quarter and year in which the termination occurred become available.
4.03 Participation in Benefit Plans. The Executive shall also be
entitled to participate in all employee benefit plans or programs (including
vacation time of not less than three weeks annually) established by the
Company's Board of Directors from time to time to the extent that his position,
title, tenure, salary, age, health and other qualifications make him eligible to
participate. The Executive's participation in any such plan or program shall be
subject to the provisions, rules and regulations applicable thereto. Without
limiting the generality of the foregoing, the Executive shall be provided with
medical, disability (including long-term disability), and life insurance
coverage to the extent it is available at a reasonable cost from reputable
insurers. The Company shall pay 100% of the Executive's individual and family
medical insurance coverage.
4.04 Registration Rights.
(a) Whenever the Parent proposes to file a Registration Statement at
any time and from time to time, it will, prior to such filing, give written
notice to the Executive of its intention to do so and, upon the written request
of the Executive, given within 10 business days after the Parent provides such
notice (which request shall state the intended method of disposition of the
Registrable Shares), the Parent shall use its best efforts to cause all shares
purchased by the Executive pursuant to any Parent stock options held by the
Executive (the "Registrable Shares") which the Parent has been requested by the
Executive to register, to be registered under the Securities Act to the extent
necessary to permit their sale or other disposition in accordance with the
intended methods of distribution specified in the request of the Executive;
provided, however, that the Parent shall have the right to postpone or withdraw
any registration effected pursuant to this Section without obligation to the
Executive. The Executive shall promptly provide to the Parent such information
and representations as may be requested by the Parent for purposes of the
Registration Statement, and agrees that the Parent does not have to honor the
piggy-back registration rights granted in this Section if, at the time the
Registration Statement becomes effective or shortly thereafter, there is in
effect a Registration Statement on Form S-8 or on another Form allowing the
Executive to sell the Registrable Shares.
(b) In connection with any registration under this Section involving
an underwriting, the Parent shall not be required to include any Registrable
Shares in such registration unless the Executive accept the terms of the
underwriting as agreed upon between the Parent and the underwriters selected by
it. If in the opinion of the managing underwriter it is desirable because of
marketing factors to limit the number of Registrable Shares to be included in
the offering, then the Parent shall be required to include in the registration
only that number of Registrable Shares, if any, which the managing underwriter
believes should be included therein
4.05 Expenses; Auto Allowance. The Company shall pay or reimburse
the Executive for all reasonable and necessary out-of-pocket expenses (including
tolls and parking, but specifically excluding purchases of gas, repairs,
maintenance and insurance) incurred by him in the performance of his duties
under this Agreement, and shall also pay the Executive an auto allowance for up
to $700 net per month, subject to the Company's normal policies for expense
verification.
5. Confidential Information. Except as permitted or directed by the
Company's Board of Directors, during the term of the Executive's employment
pursuant to this Agreement or otherwise, and for a period of one year
thereafter, the Executive shall not divulge, furnish or make accessible to
anyone or use in any way (other than in the ordinary course of the business of
the Company or any of its Affiliates) any confidential or secret knowledge or
information of the Company or any of its Affiliates which the Executive has
acquired or become acquainted with or shall acquire or become acquainted with
prior to the termination of the period of his employment by the Company
(including employment by the Company or any of its Affiliates), whether
developed by himself or by others, concerning any trade secrets, confidential or
secret designs, processes, formulae, plans, devices or material (whether or not
patented or patentable), product development, financial results or condition,
business plans or projections directly or indirectly useful in any aspect of the
business of the Company or any of its Affiliates, any confidential customer
lists or printer or supplier lists of the Company or any of its Affiliates, any
consultant, author, salaried and independent sales representative, freelance
employee, employee and contractor lists of the Company or any of its Affiliates,
any confidential or secret development or research work of the Company or any of
its Affiliates, any lists of potential investors or acquisitions contemplated by
the Company or any of its Affiliates, any plans, proposals or strategies of the
Company or its Affiliates to expand, merge or engage in a business combination
or relationship, or any other confidential or secret aspects of the business of
the Company or any of its Affiliates. The Executive acknowledges that the
above-described knowledge or information constitutes a unique and valuable asset
of the Company and its Affiliates, as the case may be, acquired at great time
and expense by the Company, its predecessors and its Affiliates, as the case may
be, and that any disclosures or other use of such knowledge or information other
than for the sole benefit of the Company or any of its Affiliates would be
wrongful and would cause irreparable harm to the Company and its Affiliates, as
the case may be. The foregoing obligations of confidentiality, however, shall
not apply to any knowledge or information which is now public or which
subsequently becomes generally publicly known, other than as a direct or
indirect result of the breach of this Agreement by the Executive, and to any
disclosures required by law.
6. Ventures. If, during the term of this Agreement, the Executive is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company or any of its Affiliates and a third
party or parties, all rights in the project, program or venture, to the extent
that such rights may be claimed by the Executive or the Company or any of its
Affiliates, shall belong to the Company or its Affiliates, as the case may be.
Except as approved by the Company's Board of Directors, the Executive shall not
be entitled to any interest in such project, program or venture or to any
commission, finder's fee or other compensation in connection therewith other
than the compensation to be paid to the Executive as provided in this Agreement.
7. Non-Competition.
(a) During the term of the Executive's employment by the Company
pursuant to this Agreement or otherwise, and for one year following termination
of his employment, the Executive shall not, directly or indirectly, engage in
competition with the Company or any of its Affiliates in any manner or capacity
(e.g., as an adviser, consultant, principal, agent, partner, officer, director,
stockholder, employee, member of any association, or otherwise) in any phase of
the business which the Company or any of its Affiliates is conducting or
proposes to conduct during the term of this Agreement or conducted during the
term of the 2001 Agreement, including the design, development, distribution,
marketing or selling of accessories, manipulatives, books, supplements, tests,
or any other products or services being sold by the Company and its Affiliates.
(b) The obligations of the Executive under Section 7(a) shall apply
to a territory consisting of the entire United States and shall also apply to
the U.S. Department of Education schools located in foreign countries for
children whose parents are stationed or work in those foreign countries in U.S.
government service.
(c) For a period of twelve (12) months following the termination of
the Executive's employment with the Company (whether pursuant to this Agreement
or otherwise), the Executive will not, on behalf
of himself or on behalf of any other person, firm or corporation, (i) call on
any of the customers or identified customer prospects of the Company or any of
its Affiliates, for the purpose of soliciting or providing to any said customers
or prospective customers any products or services competitive to the products
and services of the Company or any of its Affiliates, nor will he in any way
divert or take away any customer of the Company or its Affiliates; or (ii) call
on any investor or acquisition/merger candidate identified by the Company or its
Affiliates, whether pursuant to this Agreement or otherwise.
(d) During the term of this Agreement, the Executive shall not,
directly or indirectly, assist or encourage any other person in carrying out,
directly or indirectly, any activity that would be prohibited by the above
provisions of this Section 7 if such activity were carried out by the Executive,
either directly or indirectly; and in particular the Executive shall not,
directly or indirectly, induce any employee of the Company or any of its
Affiliates to carry out, directly or indirectly, any such activity.
(e) For a period of twelve (12) months following the termination of
the Executive's employment with the Company (whether pursuant to this Agreement
or otherwise), the Executive will not, directly or indirectly, employ, solicit
for employment, or advise or recommend to any other person, firm or corporation
that they employ or solicit for employment or contract/consulting relationship
any employee, consultant, independent contractor or sales representative of the
Company or any of its Affiliates.
(f) Except as set forth in Section 8.01, during the term of this
noncompetition covenant which follows the termination of the Executive's
employment by the Company, the Company shall pay to the Executive, as
consideration for such covenant, an amount equal to 60% of the Executive's
annual base salary at the time of termination of employment, which amount shall
be payable to the Executive on a monthly basis in advance. However, if the
Executive becomes employed with another corporation or entity or as a sole
proprietor during the term of his noncompetition covenant which follows the
termination of the Executive's employment by the Company, the Company shall only
be obligated to pay to the Executive, as consideration for such covenant, an
amount equal to 30% of the Executive's annual base salary at the time of
termination of employment, which amount shall be payable to the Executive on a
monthly basis. In either case, the Company may, upon 30 days written notice to
the Executive, terminate its obligation to make such payments to the Executive
and, in such event, this noncompetition covenant shall terminate as of the end
of such 30-day period. The Executive shall not be entitled to any of the
payments or benefits set forth in Section 4 during the period during which the
Company pays the Executive as provided in this Section 7(f).
(g) Ownership by the Executive, as a passive investment, of less
than five percent (5%) of the outstanding shares of capital stock of any
corporation listed on a national securities exchange or publicly traded in the
over-the-counter market shall not constitute a breach of this Section 7.
8. Termination.
8.01 Termination.
(a) This Agreement shall terminate prior to the expiration of the
initial term set forth in Section 2 or of any extension thereof and neither the
Company nor any of its Affiliates shall be obligated to make any further
payments or to provide any benefits (except up to the date of termination) to
the Executive in the event that at any time during such initial term or any
extension thereof:
(i) Executive shall die, or
(ii) Executive shall become disabled in accordance with
Section 8.02, or
(iii) Executive has breached the provisions of Sections 5 or 7
of this Agreement in any material respect, or
(iv) Executive is terminated for "cause," which means (A) the
Executive's violation of a specific written reasonable direction from the
CEO or the Board of Directors of the Company or the Parent or (B) the
Executive's failure or refusal to perform duties in accordance with this
Agreement; provided, however, no termination shall be for cause under
subsection (A) or (B) unless the Executive shall
have first received written notice from the CEO advising the Executive of
the act or omission that constitutes cause and such act or omission
continues after the Executive's receipt of such notice for at least a
period of time that would have allowed the Executive to correct such act
or omission or (C) an act or acts of personal dishonesty taken by the
Executive and intended to result in substantial personal enrichment of the
Executive at the expense of the Company or its Affiliates, or (D) the
willful engaging by the Executive in illegal conduct that is materially
and demonstrably injurious to the Company or its Affiliates. For the
purposes of this section, no act, or failure to act, on the Executive's
part shall be considered "dishonest," "willful" or "deliberate" unless
done, or omitted to be done, by the Executive in bad faith and without
reasonable belief that the Executive's action or omission was in, or not
opposed to, the best interest of the Company or its Affiliates. Any act,
or failure to act, based upon authority given by the CEO or pursuant to a
resolution duly adopted by the Board of the Company shall be conclusively
presumed to be done, or omitted to be done, by Executive in good faith and
in the best interest of the Company and its Affiliates.
Notwithstanding any termination of this Agreement pursuant to this Section 8.01,
the Executive and the Company, in consideration of their respective rights and
obligations as set forth in this Agreement, shall remain bound by the provisions
of this Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of the Executive's employment.
(b) If the Company terminates the Executive prior to the expiration
of the initial or an extension term of this Agreement for reasons other than set
forth in Sections 8.01(a)(i)-(iv) or if the Executive terminates this Agreement
for Good Reason (as defined below), the Company shall pay the Executive his
salary and benefits through the date of termination, and:
(i) the Company shall be obligated to pay to the Executive
100% of his monthly base salary (as calculated below) for an aggregate
period of twelve (12) months from the date of termination or the remainder
of the term of this Agreement, whichever is shorter. Such amount shall be
payable by the Company on a monthly basis. The Executive shall not be
entitled to any of the payments or benefits set forth in Section 4 during
the period during which the Company pays the Executive as provided in this
Subsection (b)(i). For purposes of this subsection only, the Executive's
monthly base salary shall be calculated by dividing (A) an amount equal to
the Executive's annual salary at the time of termination, by (B) twelve
(12); and
(ii) the Executive shall remain bound by the provisions of
Section 7 in accordance with the terms thereof during the payment period
set forth in Subsection (b)(i) immediately above, and the Company shall
not be obligated to pay the Executive the amounts set forth in 7(f) in
consideration therefor. Notwithstanding the foregoing, if the period of
the required payments under Subsection 8.01(b)(i) above is less than
twelve (12) months, the Executive shall be bound by the provisions of
Section 7 of this Agreement for such additional number of months which,
when added to the number of months the Company is required to pay the
Executive under Subsection 8.01(b)(i) above, equals an aggregate of twelve
(12) months, provided that the Company pays the Executive the amounts set
forth in Section 7(f) of this Agreement for such additional months.
"Good Reason" shall mean the Company's material breach of its
obligations or undertakings as set forth in this Agreement, provided,
however, that no termination shall be for Good Reason unless the Company
shall have first received written notice from the Executive advising the
Company of the specific nature of the breach that constitutes the basis
for the termination for Good Reason by the Executive and such material
breach continues after the Company's receipt of such notice for at least a
period of time that would have allowed the Company to correct such
material breach.
(c) If the Executive resigns prior to the expiration of the initial
or an extension term of this Agreement other than for Good Reason, the Company
shall be obligated to pay the Executive his salary and benefits through the date
of resignation. Thereafter, no salary, bonus or any other benefits or amounts
shall be payable by the Company to the Executive. In the event the Executive
resigns, the provisions of Section 7 shall continue to apply.
8.02 "Disability" Defined. The Board of Directors of the Company or
Parent may determine that the Executive has become disabled, for the purpose of
this Agreement, in the event that the Executive shall fail,
because of illness or incapacity, to render services of the character
contemplated by this Agreement for a period of 180 consecutive days and on the
date of determination continues to be so disabled. The existence or nonexistence
of grounds for termination of this Agreement for any reason under Section
8.01(a)(ii) shall be determined in good faith by the Board of Directors of the
Company or Parent after notice in writing given to the Executive at least 30
days prior to such determination. During such 30-day period, the Executive shall
be permitted to make a presentation to the Board of Directors for its
consideration.
8.03 Surrender of Records and Property. Upon termination of his
employment with the Company, the Executive shall deliver promptly to the Company
all records, manuals, books, blank forms, documents, letters, manuscripts,
publishing proposals from authors or employees, memoranda, notes, notebooks,
reports, data, tables, calculations, lists of investors or acquisition/merger
candidates, computer files, financial statements or records, budgets or business
plans or copies thereof, which are the property of the Company or any of its
Affiliates or which relate in any way to the business, products, practices or
techniques of the Company or any of its Affiliates, and all other property,
trade secrets and confidential information of the Company or any of its
Affiliates, including, but not limited to, all documents which in whole or in
part contain any trade secrets or confidential information of the Company or any
of its Affiliates, which in any of these cases are in his possession or under
his control.
9. Miscellaneous.
9.01 Governing Law. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of New
Jersey.
9.02 Prior Agreements. This Agreement contains the entire agreement
of the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter (including the
2001 Agreement), and the parties hereto have made no agreements, representations
or warranties relating to the subject matter of this Agreement which are not set
forth herein.
9.03 Withholding Taxes. The Company may withhold from any benefits
payable under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
9.04 Amendments. No amendment or modification of this Agreement
shall be deemed effective unless made in writing signed by the parties hereto.
9.05 Assignment. This Agreement shall not be assignable, in whole or
in part, by either party without the written consent of the other party.
9.06 No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provisions of this Agreement, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is sought. Any written
waiver shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waive and shall not constitute
a waiver of such term of condition for the future or as to any act other than
that specifically waived.
9.07 Injunctive Relief. The Executive agrees that it would be
difficult to compensate the Company or its Affiliates fully for damages for any
violation of the provisions of this Agreement, including without limitation the
provisions of Sections 5, 7, and 8.03. Accordingly, the Executive specifically
agrees that the Company and its Affiliates shall be entitled to temporary and
permanent injunctive relief to enforce the provisions of this Agreement. This
provision with respect to injunctive relief shall not, however, diminish the
right of the Company and its Affiliates to claim and recover damages in addition
to injunctive relief.
9.08 Severability. To the extent any provision of this Agreement
shall be invalid or unenforceable, it shall be considered deleted herefrom and
the remainder of such provision and of this Agreement shall be unaffected and
shall continue in full force and effect. In furtherance and not in limitation of
the foregoing, should the duration or geographical extent of, or business
activities covered by, any provision of this Agreement be in excess of that
which is valid and enforceable under applicable law, then such provision shall
be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered. The Executive acknowledges the uncertainty of the law in this
respect and expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
IN WITNESS WHEREOF, the parties have hereunto set their hands, intending
to be legally bound, as of the date first above written.
THE PEOPLES PUBLISHING GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Its: Chief Executive Officer
/s/ Matti. A. Prima
------------------------------------
Xxxxx X. Prima
ACCEPTED AND AGREED
this 30th day of June 2004
PEOPLES EDUCATIONAL HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Its: Chief Executive Officer
EXHIBIT A
SALES MANAGER INCENTIVE PLAN
I. DEFINITIONS:
"Incentive Plan Net Sales" shall mean solely the Parent's consolidated test
preparation, supplemental, electronic and Measuring Up professional development
product net revenues for the applicable quarter, but excluding (i) returns, (ii)
bad debt, (iii) taxes, and (iv) shipping and handling revenue, and as adjusted
by any year-end audit increases or decreases. Sales increases resulting from
acquired products or companies are excluded from the Incentive Plan Net Sales
until after 12 full months from the date of acquisition.
II. QUARTERLY SALES INCENTIVE:
One and one-half percent (1.5%) of the increase in the quarter to quarter growth
(quarter in one year (starting with 2003 as the base year) compared to the same
quarter in the following year) in the Incentive Plan Net Sales during the term
of the Agreement. For example, if the Incentive Plan Net Sales for the Quarter
Ended March 31, 2003 was $1,000,000 and the Incentive Plan Net Sales for the
Quarter Ending March 31, 2004 will be $1,200,000, the Executive would be
entitled to receive $3,000 as bonus for the quarter to quarter growth between
those two quarters. Such amounts shall be paid upon the release of the quarterly
consolidated financial statements of the Parent for the second quarter in each
applicable comparison period.
This incentive shall be subject to such changes and modifications, upward or
downward, as may be determined by the Board of Directors of the Company.
This incentive for the quarter in which the Executive's employment pursuant to
this Agreement is terminated is payable on the terms and conditions provided in
Section 4.02 of this Agreement.
III. QUARTERLY SALES BONUS:
A quarterly sales bonus of $3,000 for each fiscal quarter if the Board approved
quarterly budget for both Incentive Plan Net Sales is met or exceeded in that
quarter. This bonus for the quarter in which the Executive's employment pursuant
to this Agreement is terminated is payable on the terms and conditions provided
in Section 4.02 of this Agreement.
This incentive shall be subject to such changes and modifications, upward or
downward, as may be determined by the Board of Directors of the Company.
IV. SHORT AND LONG TERM INCENTIVE BONUS PLAN:
The Executive shall be eligible to participate in any short and long term
incentive plans that the Board of Directors may put into place for the benefit
of all senior executives of the Company. While the details of any such new plan
have not been determined as of the date of this Agreement, such plan shall be
subject to such terms and conditions, including changes and modifications, as
shall be determined by the Board in its sole discretion.
