Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Act”), becomes the beneficial owner (within the meaning of Rule 13d-3 under the Act) of
voting securities of
the company representing more than 30% of the total votes eligible to be
cast at any election of directors of
the company.
(f) For purposes of determining whether the shares of Restricted Stock shall become
vested, the Performance Criteria shall be deemed satisfied when
the Company Operating Income
Growth exceeds the Peer Group Operating Income Growth, and the Committee certifies in writing
that such Performance Criteria has been satisfied. Notwithstanding the foregoing, in the
event of a Change of Control (as defined below) the Performance Criteria shall be deemed
satisfied and the Committee shall certify that such Performance Criteria has been satisfied.
(g) Notwithstanding anything in this Agreement to the contrary, the shares of
Restricted Stock shall become fully vested upon your Involuntary Termination. As used in
this paragraph,
“Involuntary Termination” means your termination from employment with the
Company on or within twelve months following a Change of Control that is either (i) initiated
by
the Company for reasons other than (a) your gross negligence or willful misconduct in the
performance of your duties with
the Company or (b) your final conviction of a felony or a
misdemeanor involving moral turpitude, or (ii) initiated by you after (a) a reduction by the
Company of your authority, duties or responsibilities immediately prior to the Change of
Control (excluding for this purpose (A) an insubstantial reduction of such authorities,
duties or responsibilities or an insubstantial reduction of your offices, titles and
reporting requirements, or (B) an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by
the Company promptly after receipt of notice thereof given
by you), (b) a reduction of your base salary or total compensation as in effect immediately
prior to the Change of Control (total compensation means for this purpose: base salary,
participation in an annual bonus plan, and participation in a long-term incentive plan), or
(c) your transfer, without your express written consent, to a location which is outside the
general metropolitan area in which your principal place of business immediately prior to the
Change of Control may be located or
the Company’s requiring you to travel on Company business
to a substantially greater extent than required immediately prior to the Change of Control.
The term
“Change of Control” shall mean: (i)
the Company completes the sale of assets having
a gross sales price which exceeds 50% of the consolidated total capitalization of
the Company
(consolidated total stockholders’ equity plus consolidated total long-term debt as determined
in accordance with generally accepted accounting principles) as at the end of the last full
fiscal quarter prior to the date such determination is made; or (ii) any corporation, person
or group within the meaning of Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the
“Act”), becomes the beneficial owner (within the meaning of Rule
13d-3 under the Act) of voting securities of
the Company representing more than 30% of the
total votes eligible to be cast at any election of directors of
the Company. For purposes of
this Agreement,
“employment with the Company” shall include being an employee or a director
of, or a consultant to,
the Company or any of its
subsidiaries (a
“Subsidiary”).
(h) The provisions of any written employment or severance agreement between you and the
Company concerning the vesting of Restricted Stock are incorporated hereby and made a part of
this