PRIDE INTERNATIONAL,
INC.
AMENDED AND RESTATED
EMPLOYMENT/
NON-COMPETITION/CONFIDENTIALITY AGREEMENT
AMENDED AND RESTATED EMPLOYMENT/
NON-COMPETITION/CONFIDENTIALITY AGREEMENT
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The date of
execution set forth below.
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Pride
International, Inc.,
a Delaware corporation
5847 San Felipe, Suite 3300
Houston, Texas 77057
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Brian C.
Voegele
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This
Amended and Restated Employment/Non-Competition/Confidentiality
Agreement by and between Pride International, Inc. (the
“Company” and as further defined below) and Brian C.
Voegele (“Employee”) (together the
“Parties”), effective as of the date set forth in
Section 2.08 below (the “Agreement”), is made on
the terms as herein provided.
WHEREAS,
the Parties previously entered into an employment agreement
effective as of November 21, 2005 (the “Prior
Agreement”) and wish to hereby supersede the Prior Agreement
and amend and restate the rights and obligations of the Parties
with regard to Employee’s employment with the Company in this
Agreement; and
WHEREAS,
Employee is willing to enter into this Agreement upon the terms and
conditions and for the consideration set forth herein.
NOW,
THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, the Parties agree as
follows:
I. PRIOR
AGREEMENTS/CONTRACTS
As of the
Effective Date, the Prior Agreement is hereby amended, modified and
superseded by this Agreement insofar as future employment,
compensation, non-competition, confidentiality, accrual of payments
or any form of compensation or benefits from the Company are
concerned. This Agreement does not release or relieve the Company
from its liability or obligation with respect to any compensation,
payments or benefits already accrued to Employee for service prior
to the Effective Date, nor to any vesting of benefits or other
rights which are attributable to length of employment, seniority or
other such matters. This Agreement does not relieve Employee of any
prior non-competition or confidentiality obligations and agreements
and the same are hereby modified and amended as to future matters
and future confidentiality even as to matters accruing prior to the
Effective Date hereof.
Words used in
the Agreement in the singular shall include the plural and in the
plural the singular, and the gender of words used shall be
construed to include whichever may be appropriate under any
particular circumstances of the masculine, feminine or neuter
genders.
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2.01
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CAUSE. The term “Cause”
means: (i) Employee’s continued failure to perform his
duties and responsibilities with the Company (other than any
failure due to physical or mental incapacity) after a written
demand for performance is delivered to him by the Board which
specifically identifies the manner in which the Board believes he
has not performed his duties, (ii) gross negligence or willful
misconduct which causes material injury, monetary or otherwise, to
the Company or its affiliates, (iii) intentional action,
materially and demonstrably injurious to the Company, which
Employee knows would not comply with the laws of the United States
or any other jurisdiction applicable to Employee’s actions on
behalf of the Company, and/or any of its subsidiaries or
affiliates, including specifically, without limitation, the United
States Foreign Corrupt Practices Act, generally codified in 15 USC
78 (the “FCPA”), as the FCPA may hereafter be amended,
and/or its successor statutes, or (iv) violation of one or
more of the covenants in Article V (except violation of the
covenant not to compete after termination of employment after
Change in Control as discussed herein). No act or failure to act by
Employee shall be considered “willful” unless done or
omitted to be done by him not in good faith and without reasonable
belief that his action or omission was in the best interest of the
Company. The unwillingness of Employee to accept, under
circumstances that give rise to Constructive Termination, any or
all of a change in the nature or scope of his position, authorities
or duties, a reduction in his total compensation or benefits, or
other action by or at request of the Company in respect of his
position, authority, or responsibility that is contrary to this
Agreement, may not be considered by the Board to be a failure to
perform or misconduct by Employee. Notwithstanding the foregoing,
Employee shall not be deemed to have been terminated for Cause for
purposes of the Agreement unless and until there shall have been
delivered to him a copy of a resolution, duly adopted by a vote of
three-fourths of the entire Board at a meeting of the Board called
and held (after a notice to Employee identifying in reasonable
detail the manner in which Company believes Cause exists and an
opportunity for Employee and his counsel to prepare for and to be
heard before the Board) for the purpose of considering whether
Employee has been guilty of such a willful failure to perform or
such willful misconduct as justifies termination for Cause
hereunder, finding that, in the good faith opinion of the Board,
Employee has been guilty thereof and specifying the particulars
thereof.
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2.02
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CHANGE IN CONTROL. The term
“Change in Control” of the Company shall mean, and
shall be deemed to have occurred on the date of the first to occur
of any of the following:
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a.
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there occurs a change in control of
the Company of the nature that would be required to be reported in
response to item 6(e) of Schedule 14A of Regulation 14A
or Item 5.01 of Form 8-K promulgated under the Securities
Exchange Act of 1934 as in effect on the date of the Agreement, or
if neither item remains in effect, any regulations issued by the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 which serve similar purposes;
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b.
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any
“person” (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) is or becomes a
beneficial owner, directly or indirectly, of securities of the
Company representing twenty percent (20%) or more of the total
voting power of the Company’s then outstanding
securities;
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c.
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individuals who, as of the date
hereof, constitute the members of the Board of Directors of the
Company (the “Incumbent Directors”) cease for any
reason other than due to death or disability to constitute at least
a majority of the members of the Board of Directors of the Company
(the “Board”), provided that any director who was
nominated for election or was elected with the approval of at least
a majority of the members of the Board who are at the time
Incumbent Directors shall be considered an Incumbent Director
unless such individual’s initial assumption of office occurs
as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
person other than the Board;
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d.
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the
Company shall have merged into or consolidated with another
corporation, or merged another corporation into the Company, on a
basis whereby less than fifty percent (50%) of the total voting
power of the surviving corporation is represented by shares held by
former stockholders of the Company prior to such merger or
consolidation;
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e.
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the
Company shall have sold, transferred or exchanged all, or
substantially all, of its assets to another corporation or other
entity or person; or
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f.
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a
Merger Protection Change in Control (as hereinafter defined) shall
have occurred.
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2.03
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CHANGE IN CONTROL TERMINATION. The
term “Change in Control Termination” shall mean a
Termination (i) within two (2) years following the date
of a Change in Control which occurs for any reason other than a
Merger Protection Change in Control or (ii) within one
(1) year following the date of a Merger Protection Change in
Control.
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2.04
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COMPANY. The term
“Company” means Pride International, Inc., a Delaware
corporation, as the same presently exists, as well as any and all
successors and assigns, regardless of the nature of the entity or
the state or nation of organization, whether by reorganization,
merger, consolidation, absorption or dissolution. For the purpose
of the Agreement, Company includes all subsidiaries and affiliates
of the Company to the extent such subsidiary and/or affiliate is
carrying on any portion of the business of the Company or a
business similar to that being conducted by the Company.
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2.05
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CONSTRUCTIVE TERMINATION. The term
“Constructive Termination” means termination of
employment by reason of Employee’s resignation for any one or
more of the following events:
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a.
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Employee’s resignation or
retirement is requested by the Company other than for
Cause;
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b.
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A
significant and material diminution in Employee’s duties and
responsibilities and which diminution would degrade, embarrass or
otherwise make it unreasonable for Employee to remain in the
employment of the Company;
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c.
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Any
(i) reduction in Employee’s total base salary, (ii)
reduction in Employee’s bonus target award level specified in
Section 3.04(b), or (iii) material reduction in
Employee’s benefits other than equity or long-term incentive
awards or actual bonus award payouts, in all cases from the levels
then in effect immediately prior to such reduction, unless such a
reduction under (i), (ii) or (iii) is generally
applicable to all similarly situated executives of the
Company;
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d.
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The
material breach by the Company of any other provision of the
Agreement;
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e.
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Any
requirement of the Company that Employee relocate more than 50
miles from downtown Houston, Texas; or
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f.
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Notice by the Company of non-renewal
of the Agreement contrary to the wishes of Employee, if such
non-renewal would be effective prior to the expiration of the
Employment Period during which Employee attains age 65.
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Notwithstanding any provision to the
contrary, in order for Employee’s resignation to be deemed a
Constructive Termination, (A) Employee must provide a written
notice to the Company that Employee intends to terminate his
employment with the Company within 60 days following the
occurrence of the event that Employee claims constitutes a
Constructive Termination; (B) the written notice must describe
the event constituting the Constructive Termination in reasonable
detail and (C) within 30 days after receiving such notice
from Employee, the Company must fail to reinstate Employee to the
position he was in, or otherwise cure the circumstances giving rise
to the Constructive Termination.
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2.06
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CUSTOMER. The term
“Customer” includes all persons, firms or entities that
are purchasers or end-users of services or products offered,
provided, developed, designed, sold or leased by the Company during
the relevant time periods, and all persons, firms or entities which
control, or which are controlled by, the same person, firm or
entity which controls such purchase.
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2.07
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DISABILITY. The term
“Disability” means physical or mental incapacity
qualifying Employee for a long-term disability under the
Company’s long-term disability plan. If no such plan exists
on the date on which a relevant determination is being made, the
term “Disability” means physical or mental incapacity
as determined by a doctor jointly selected by Employee (or
Employee’s representative legally authorized to act on
Employee’s behalf) and the Board qualifying Employee for
long-term disability under reasonable employment
standards.
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2.08
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EFFECTIVE DATE. The Agreement
becomes effective and binding as of December 31,
2008.
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2.09
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MAXIMUM BONUS. The term
“Maximum Bonus” shall mean the maximum amount of
compensation Employee may earn under the Company’s annual
bonus incentive plan for the fiscal year in which the Termination
occurs, or if the Company has not specified a maximum amount for
such year, for the last year in which the Company had specified
such a maximum amount; provided, however, that in no event shall
“Maximum Bonus” mean an amount less than two
(2) times Target Bonus.
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2.10
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MERGER PROTECTION CHANGE IN CONTROL.
The term “Merger Protection Change in Control” shall
mean, and shall be deemed to have occurred on, the date the Company
shall have merged into or consolidated with another corporation, or
merged another corporation into the Company, on a basis whereby at
least fifty percent (50%) but not more than sixty-six percent (66%)
of the total voting power of the surviving corporation is
represented by shares held by former stockholders of the Company
immediately prior to such merger or consolidation.
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2.11
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TARGET BONUS. The term “Target
Bonus” shall mean Employee’s target bonus under the
Company’s annual bonus incentive plan for the fiscal year in
which Termination occurs or, if the Company has not specified a
target bonus for such year, for the last year in which the Company
had specified such a target bonus.
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2.12
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TERMINATION. The term
“Termination” shall mean termination of the employment
of Employee with the Company (including Disability and Constructive
Termination) for any reason other than (i) Cause,
(ii) Voluntary Resignation or (iii) death. Termination
includes termination at the end of any “Employment
Period” due to non-renewal or failure to extend this
Agreement for any reason except for Cause or because Employee has
reached age 65 prior to the end of the Employment Period.
Notwithstanding any provision hereof to the contrary, the Company
shall have the right to terminate Employee’s employment at
any time during the Employment Period (including any extended
term), and the Company has no obligation to deliver advance notice
of termination of employment, except such notice as is otherwise
required for a termination for Cause under
Section 2.01.
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2.13
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VOLUNTARY RESIGNATION. The term
“Voluntary Resignation” means termination of employment
with the Company by Employee for any reason other than death,
Disability or a Constructive Termination.
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3.01
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EMPLOYMENT. Except as otherwise
provided in the Agreement, the Company hereby agrees to continue
Employee in its employ, and Employee hereby agrees to remain in the
employ of the Company, for the Employment Period. During the
Employment Period, Employee shall exercise such position and
authority and perform such responsibilities as are commensurate
with the position to which he is assigned and as directed by his
supervisor. The office, position and title which Employee is
currently assigned is that of Senior Vice President and Chief
Financial Officer of the Company. Employee and the Company agree
that the Company may re-assign Employee to another office, position
and/or title, subject to Employee’s rights under
Section 2.05 of the Agreement.
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3.02
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BEST EFFORTS AND OTHER EMPLOYMENT
OBLIGATIONS OF EMPLOYEE; BUSINESS EXPENSES AND OFFICE AND OTHER
SERVICES.
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a.
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During the Employment Period,
Employee agrees that he will at all times faithfully, industriously
and to the best of his ability, experience and talents, perform all
of the duties that may be required of and from him pursuant to the
express and implicit terms hereof, to the reasonable satisfaction
of the Company.
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b.
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During the Employment Period,
Employee shall devote his normal and regular business time,
attention and skill to the business and interests of the Company,
and the Company shall be entitled to all of the benefits, profits
or other issue arising from or incident to all work, services and
advice of Employee performed for the Company. Such employment shall
be considered “full time” employment. Employee shall
also have the right to devote such incidental and immaterial
amounts of his time which are not required for the full and
faithful performance of his duties hereunder to any outside
activities and businesses which are not being engaged in by the
Company and which shall not otherwise interfere with the
performance of his duties hereunder. Notwithstanding the foregoing,
it shall not be a violation of the Agreement for Employee to
(i) serve on corporate, civic or charitable boards or
committees, (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions and
(iii) manage personal investments, so long as such activities
do not significantly interfere with the performance of
Employee’s responsibilities hereunder. Employee shall have
the right to make investments in any business provided such
investment does not result in a violation of Article V of the
Agreement.
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c.
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Employee acknowledges and agrees
that, in connection with his employment relationship with the
Company, Employee owes a fiduciary duty to the Company. In keeping
with these duties, Employee shall make full disclosure to the
Company of all business opportunities pertaining to the
Company’s business and shall not appropriate for
Employee’s own benefit business opportunities concerning the
subject matter of the fiduciary relationship.
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d.
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During and after the Employment
Period, Employee agrees not to make any disparaging comments about
the Company, any affiliates, or any current or former officer,
director or employee of the Company or any affiliate or to take any
action (or assist any person in taking any other action), in each
case, that is materially adverse to the interests of the Company or
any affiliate or inconsistent with fostering the goodwill of the
Company and its affiliates; provided, however, that nothing in the
Agreement shall apply to or restrict in any way the communication
of information by Employee to any state or federal law enforcement
agency or require notice to the Company thereof, and Employee will
not be in breach of the covenant contained above solely by reason
of his testimony which is compelled by process of law. During and
after the Employment Period, the Company and its affiliates,
officers and directors agree to not to make any disparaging
comments about Employee; provided, however, that nothing in the
Agreement shall apply to or restrict in any way the communication
of information by the Company and its affiliates, officers and
directors to any state or federal law enforcement agency or require
notice to Employee thereof, and the Company and its affiliates,
officers and directors will not be in breach of the covenant
contained above solely by reason of testimony which is compelled by
process of law. Nothing in this Section, express or implied, is
intended to or shall confer upon any person other than Employee,
the Company or any subsidiary or affiliate of the Company any right
benefit or remedy of any nature whatsoever under or by reason of
this Agreement.
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e.
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During the Employment Period,
Employee shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Employee in accordance with the
most favorable policies, practices and procedures of the Company as
in effect from time to time. Such reimbursement shall be made
subject to the terms and conditions of the Company’s policy
on the earlier of (i) the date specified in the
Company’s policy or (ii) to the extent the reimbursement
is taxable and subject to Section 409A (as defined in Section
6.04), no later than December 31 of the calendar year next
following the calendar year in which the expense was
incurred.
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f.
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During the Employment Period, the
Company shall furnish Employee with office space, secretarial
assistance and such other facilities and services as shall be
suitable to Employee’s position and adequate for the
performance of Employee’s duties hereunder.
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3.03
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TERM OF EMPLOYMENT. TERM AND
EMPLOYMENT PERIOD. The period of Employee’s employment with
the Company (the “Employment Period”) that commenced in
accordance with the terms of the Prior Agreement will end on the
date of Employee’s termination of employment. The term of
this Agreement shall commence on the Effective Date and end at
12:00 o’clock midnight on January 25, 2010; thereafter,
the term of the Agreement will be automatically extended for
successive terms of one (1) year commencing on January
25 th of each year; unless the Company or
Employee gives written notice to the other that the Agreement will
not be renewed or continued after the next scheduled expiration
date which is not less than one (1) year after the date that
the notice of non-renewal was given. Notwithstanding the above,
this Agreement will automatically expire at the end of the term
during which Employee attains age 65. Immediately upon termination
of employment with the Company, Employee agrees to resign from all
officer and director positions held with the Company and its
affiliates.
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3.04
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COMPENSATION AND BENEFITS. During
the Employment Period Employee shall receive the following
compensation and benefits:
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a.
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The
Company shall pay or cause to be paid to Employee an annual base
salary of not less than the amount in effect as of the Effective
Date, with the opportunity for increases, from time to time
thereafter, which are in accordance with the Company’s
regular executive compensation practices (such salary, as in effect
from time to time, the “Annual Base Salary”). The Board
will review the Annual Base Salary at least annually.
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b.
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Employee will be eligible to
participate on a reasonable basis, subject to the Company’s
discretion as to the level of actual awards, in annual bonus, stock
option, equity and incentive compensation plans which provide
opportunities to receive compensation in addition to his Annual
Base Salary. Employee will be eligible to participate in the
Company’s annual bonus incentive plan at a target award level
of not less than 65% of Annual Base Salary. Employee will be
entitled to participate in employee welfare and qualified plans
(including, but not limited to, medical, life, health, accident and
disability insurance and disability benefits) and to receive
perquisites which are offered by the Company in its exclusive
discretion. The Company agrees that during and after the term of
this Agreement, the provisions of any equity award between Employee
and the Company, whether outstanding at the Effective Date or
subsequently awarded, shall be deemed modified by the express
provisions of this Agreement pertaining to equity awards including,
but not limited to, for purposes of determining whether a stock
option award is forfeited due to “serious misconduct,”
serious misconduct shall be determined in accordance with the
standards and definition of “Cause” as defined
herein.
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c.
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Employee will receive no fewer than
twenty (20) paid vacation days each year.
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d.
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The
Company shall pay or cause to be paid to Employee a monthly
automobile allowance in an amount not less than $750.00.
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3.05
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TERMINATION WITHOUT CHANGE IN
CONTROL. Notwithstanding anything herein to the contrary, the
Company shall have the right to terminate Employee’s
employment at any time during the Employment Period. In the event
of a Termination that does not otherwise entitle Employee to
payments and benefits under Article IV, the Company shall,
sixty (60) days following such Termination, or at such other
time(s) specified in this Section 3.05 or Section 6.04,
and in exchange for a full and complete release of claims against
the Company, its affiliates, officers and directors
(“Release”), pay or provide (or cause to be paid or
provided) to Employee (or his designee or estate, as determined
under Section 6.10, in the event of death after Termination
and prior to satisfaction of the Company’s obligations in
this Section 3.05):
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a.
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An
amount equal to one (1) full year of his base salary, which
base salary is here defined as the greater of (i) twelve
(12) times the gross monthly salary in effect for Employee
immediately preceding his date of Termination or (ii) the
highest annual base salary paid to Employee during any of the three
(3) years immediately preceding his date of Termination. Upon
payment of this amount, there shall be deducted only such minimum
amounts as may be required by law to be withheld for taxes and
other applicable deductions.
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b.
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The
Company shall provide to Employee for a period of one (1) full year
following the date of his Termination, health care, life, accident
and disability insurance which are not less than the highest
benefits furnished to Employee during the term of the Agreement at
a cost to Employee as if he had remained a full time employee. If
Section 6.04a. applies to the provision of any of the
insurance described in this Section 3.05b., then Employee
shall pay the cost of such insurance premiums in the amount and for
the period of time proscribed by the application of
Section 6.04a., subject to reimbursement by the Company as
described therein.
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c.
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An
amount equal to the sum of (i) the Target Bonus, plus (ii) if
Employee experiences a Termination on or after January 1st, but
before the date on which awards are paid, if any, pursuant to
achievement of performance goals set under the Company’s
annual bonus incentive plan for the year immediately preceding the
year in which Employee’s Termination occurs, an amount,
subject to the Company’s discretion as set forth under the
Company’s annual bonus incentive plan and paid at the same
time the Company pays bonuses to similarly situated employees under
such plan, equal to the amount Employee would have earned if
Employee had remained employed with the Company until the date such
awards would otherwise have been paid, plus (iii) a pro-rata
portion of the award for the year in which Termination occurs, if
any, earned by the achievement of performance goals set under the
Company’s annual bonus incentive plan and paid at the same
time the Company pays bonuses to similarly situated employees under
such plan; provided, however, that if Employee has timely deferred
his applicable award under a Company plan, such payment due
Employee under this subparagraph shall be paid in accordance with
the terms of the deferral.
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d.
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The
“Compensation and Benefits” Section hereof shall be
applicable in determining the payments and benefits due Employee
under this Section and if Termination occurs after a reduction in
all or part of Employee’s total compensation or benefits, the
lump sum severance allowance and other compensation and benefits
payable to him pursuant to this Section shall be based upon his
compensation and benefits before the reduction.
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e.
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All
life, health, hospitalization, medical and accident benefits
available to Employee’s spouse and dependents shall continue
for the same term as Employee’s benefits. If Employee dies
after Termination, any such benefits will continue for a term of
one (1) year (or two (2) years if Article IV applies)
after the date of death of Employee. If Section 6.04a. applies
to the provision of any of the insurance coverage described in this
Section 3.05e., then Employee shall pay the cost of such insurance
premiums in the amount and for the period of time proscribed by the
application of Section 6.04a. and subject to reimbursement by the
Company described therein.
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f.
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The
Company’s obligation under this Section to pay or provide
health care, life, accident and disability insurance to Employee,
Employee’s spouse and Employee’s dependents shall be
reduced when and to the extent any such benefits are paid or
provided to Employee by another employer; provided, however, that
Employee shall have all rights, if any, afforded to retirees to
convert group life insurance coverage to the individual life
insurance coverage as, to the extent of, and whenever his group
life insurance coverage under this Section is reduced or expires.
Apart from this subparagraph, Employee shall have and be subject to
no obligation to mitigate.
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g.
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The
Company shall deduct applicable withholding taxes in performing its
obligations under this Section.
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A sample form
of Release is attached as Exhibit A. Employee acknowledges
that the Company retains the right to modify the required form of
the Release as the Company deems necessary in order to effectuate a
full and complete release of claims against the Company, its
affiliates, officers and directors. Notwithstanding any provision
herein to the contrary, if Employee has not delivered to the
Company an executed Release on or before the fiftieth (50th) day
after the date of Termination, Employee shall forfeit all of the
payments and benefits described in this Section 3.05, other
than the benefit, if any, described in Section 3.05c.(ii),
subject to Employee’s rights under Section 6.01b.;
provided, however, that Employee shall not forfeit such amounts if
the Company has not delivered to Employee the required form of
Release on or before the 25th day following the date of
Termination.
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Nothing in this
Section is intended, nor shall be deemed or interpreted, to be an
amendment to any compensation, benefit or other plan of the
Company. In the event of Employee’s Termination without a
Change in Control, Employee is entitled only to the termination
payments and benefits described in this Section 3.05 pursuant
to this Agreement, without limiting rights, if any, under any other
plan or arrangement. To the extent the Company’s performance
under this Section includes the performance of the Company’s
obligations to Employee under any other plan or under another
agreement between the Company and Employee, the rights of Employee
under such other plan or other agreement, which are discharged
under the Agreement, are discharged, surrendered, or released
pro tanto.
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4.01
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EXTENSION OF EMPLOYMENT PERIOD. The
Employment Period and term of this Agreement shall be immediately
and without further action extended for a term of two
(2) years following the effective date of the Change in
Control and will expire at 12:00 o’clock midnight on the last
day of the month following two (2) years after the Change in
Control; provided, however, that if the Change in Control is solely
on account of a Merger Protection Change in Control, the Employment
Period and term of this Agreement shall be extended for one
(1) year following the effective date of the Merger Protection
Change in Control. Thereafter, the Employment Period and term of
this Agreement will be extended for successive terms of one
(1) year each, unless terminated, all in the manner specified
in Section 3.03.
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4.02
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CHANGE IN CONTROL TERMINATION
PAYMENTS AND BENEFITS. In the event Employee has a Change in
Control Termination, the Company shall pay or provide (or cause to
be paid or provided) to Employee all of the payments and benefits
specified in Section 3.05 (the “Termination Without
Change in Control” Section) at the same time and in the same
manner therein specified except as amended and modified
below:
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a.
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The
salary and benefits specified in Section 3.05a. will be paid
based upon a multiple of two (2)&nb
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