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Exhibit
10.2
EMPLOYMENT
AGREEMENT
BETWEEN
MICHAEL A.
STIMPERT
AND
GOLD KIST,
INC.
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EMPLOYMENT
AGREEMENT
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1.
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Effective Date
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1 |
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2.
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Employment
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1 |
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3.
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Employment Period
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1 |
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4.
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Extent of Service
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1 |
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5.
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Compensation and
Benefits
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2 |
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(a)
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Base Salary
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2 |
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(b)
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Incentive, Savings and Retirement
Plans
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2 |
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(c)
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Welfare Benefit Plans
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3 |
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(d)
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Expenses
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3 |
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(e)
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Fringe Benefits
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3 |
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(f)
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Vacation
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3 |
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(g)
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Acceleration of Vesting of Equity
Awards
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3 |
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6.
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Change in Control
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3 |
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7.
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Termination of
Employment
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5 |
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(a)
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Death or Retirement
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5 |
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(b)
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Disability
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5 |
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(c)
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Termination by the Company
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5 |
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(d)
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Termination by Executive
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6 |
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(e)
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Notice of Termination
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7 |
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(f)
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Date of Termination
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7 |
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8.
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Obligations of the Company upon
Termination
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7 |
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(a)
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Termination by Executive for Good
Reason; Termination by the Company Other Than for Cause or
Disability
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7 |
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(b)
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Death, Disability or
Retirement
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8 |
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(c)
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Cause; Other than Good Reason
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9 |
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(d)
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Expiration of Employment
Period
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9 |
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(e)
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Resignations
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9 |
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9.
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Non-exclusivity of
Rights
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9 |
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10.
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Full Settlement; No
Mitigation
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9 |
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11.
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Costs of Enforcement
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9 |
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12.
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Certain Additional Payments by the
Company
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10 |
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13.
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Restrictions on Conduct of
Executive
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13 |
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(a)
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General
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13 |
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(b)
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Definitions
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13 |
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(c)
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Restrictive Covenants
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15 |
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(d)
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Enforcement of Restrictive
Covenants
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16 |
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14.
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Arbitration
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16 |
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15.
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Successors
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17 |
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16.
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Miscellaneous
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17 |
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(a)
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Governing Law
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17 |
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(b)
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Captions
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17 |
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(c)
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Amendments
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17 |
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(d)
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Notices
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17 |
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(e)
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Severability
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18 |
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(f)
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Withholding
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18 |
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(g)
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Waivers
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- ii -
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this “Agreement”) is made and entered into this 24th
day of January, 2005 by and between Gold Kist, Inc., a Georgia
corporation (the “Company”), and Michael A. Stimpert
(“Executive”), to be effective as of the Effective
Date, as defined in Section 1.
BACKGROUND
Executive currently serves as
the Senior Vice President, Planning and Administration, of the
Company, pursuant to the terms of that certain Employment
Agreement, dated as of January 25, 2002 (the “Prior
Agreement”). The Company desires to engage Executive as the
Senior Vice President, Planning and Administration, of the Company
from and after the Effective Date, in accordance with the terms of
this Agreement. Executive is willing to serve as such in accordance
with the terms and conditions of this Agreement. From and after the
Effective Date, the Prior Agreement will be superseded in its
entirety by this Agreement.
NOW THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Effective Date .
The effective date of this Agreement (the “Effective
Date”) shall be January 24, 2005.
2. Employment .
Executive is hereby employed on the Effective Date as the Senior
Vice President, Planning and Administration, of the Company. In
such capacity, Executive shall have the duties, responsibilities
and authority commensurate with such position as shall be assigned
to him by the Board of Directors or Chief Executive Officer of the
Company, which shall be consistent with the duties,
responsibilities and authority of a Senior Vice President, Planning
and Administration, of a public company engaged in similar lines of
business to that engaged in by the Company and its subsidiaries
from time to time. In his capacity as Senior Vice President,
Planning and Administration, of the Company, Executive will report
directly to the Chief Executive Officer.
3. Employment Period .
Unless earlier terminated herein in accordance with Section 7
hereof, Executive’s employment shall be for a term beginning
on the Effective Date and ending on December 31, 2007 (the
“Employment Period”). Beginning on December 31, 2005
and on each December 31 thereafter, the Employment Period shall,
without further action by Executive or the Company, be extended by
an additional one-year period; provided, however , that
either party may cause the Employment Period to cease to extend
automatically, by giving written notice to the other not less than
60 days prior to any December 31 renewal date. Upon such notice,
the Employment Period shall terminate upon the expiration of the
then-current term, including any prior extensions.
4. Extent of Service .
During the Employment Period, and excluding any periods of vacation
and sick leave to which Executive is entitled, Executive agrees
to
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devote reasonable attention and time
during normal business hours to the business and affairs of the
Company and, to the extent necessary to discharge the
responsibilities assigned to Executive hereunder, to use
Executive’s reasonable best efforts to perform faithfully and
efficiently such responsibilities. During the Employment Period it
shall not be a violation of this Agreement for Executive to (A)
serve on corporate, civic or charitable boards or committees, (B)
deliver lectures, fulfill speaking engagements or teach at
educational institutions and (C) manage personal investments, so
long as such activities do not significantly interfere with the
performance of Executive’s responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities
have been conducted by Executive prior to the Effective Date, the
continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the
performance of Executive’s responsibilities to the
Company.
5. Compensation and
Benefits .
(a) Base Salary .
During the Employment Period, the Company will pay to Executive
base salary at the rate of U.S. $360,000 per year (“Base
Salary”), less normal withholdings, payable in approximately
equal bi-weekly or other installments as are or become customary
under the Company’s payroll practices for its employees from
time to time. The Compensation Committee of the Board of Directors
of the Company shall review Executive’s Base Salary annually
and may increase (but not decrease) Executive’s Base Salary
from year to year. Such adjusted salary then shall become
Executive’s Base Salary for purposes of this Agreement. The
annual review of Executive’s salary by the Board will
consider, among other things, Executive’s own performance,
and the Company’s performance.
(b) Incentive, Savings and
Retirement Plans . During the Employment Period, Executive
shall be entitled to participate in all incentive, savings and
retirement plans, practices, policies and programs available to
senior executive officers of the Company (“Peer
Executives”), and on the same basis as such Peer Executives.
Without limiting the foregoing, the following shall
apply:
(i) during the Employment
Period, Executive will be entitled to participate in the
Company’s executive bonus plan, pursuant to which he will
have an opportunity to receive an annual cash bonus based upon the
achievement of performance goals established from year to year by
the Compensation Committee of the Board of Directors of the Company
(such bonus earned at the stated “target” level of
achievement being referred to herein as the “Target
Bonus”); and
(ii) during the Employment
Period, Executive will be eligible for grants, under the
Company’s long-term incentive plan or plans, of stock options
to acquire common stock of the Company (or such other stock-based
awards as the Company makes to Peer Executives), having terms and
determined in the same manner as awards to other Peer Executives,
unless the Executive consents to a different type of award or
different terms of such award than are applicable to other Peer
Executives. Nothing herein requires the Board of Directors to make
grants of options or other awards in any year; and
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(c) Welfare Benefit
Plans . During the Employment Period, Executive and
Executive’s eligible dependents shall be eligible for
participation in, and shall receive all benefits under, the welfare
benefit plans, practices, policies and programs provided by the
Company (including, without limitation, medical, prescription drug,
dental, disability, employee life, dependent life, accidental death
and travel accident insurance plans and programs) (“Welfare
Plans”) to the extent available to other Peer Executives.
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(d) Expenses . During
the Employment Period, Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by
Executive in the course of performing his duties and
responsibilities under this Agreement, in accordance with the
policies, practices and procedures of the Company to the extent
available to other Peer Executives with respect to travel,
entertainment and other business expenses. Without limiting the
foregoing, the Company will pay, or reimburse Executive for, the
reasonable legal fees and expenses incurred by Executive in
connection with the negotiation and execution of this
Agreement.
(e) Fringe Benefits .
During the Employment Period, Executive shall be entitled to fringe
benefits in accordance with the plans, practices, programs and
policies of the Company available to other Peer
Executives.
(f) Vacation . During
the Employment Period, Executive will be entitled to such paid
vacation time as may be provided from time to time under any plans,
practices, programs and policies of the Company available to other
Peer Executives.
(g) Acceleration of
Vesting of Equity Awards . Notwithstanding anything to the
contrary in any applicable award agreement, upon the effective date
of a Change in Control, (i) all of Executive’s outstanding
stock options and other equity awards in the nature of rights that
may be exercised shall become fully vested and exercisable, (ii)
all time-based vesting restrictions on Executive’s
outstanding equity awards shall lapse, and (iii) the target payout
opportunities attainable under all of Executive’s outstanding
performance-based equity awards shall be deemed to have been fully
earned as of the effective date of the Change in Control based upon
an assumed achievement of all relevant performance goals at the
“target” level and there shall be a prorata payout to
Executive or his or her estate within 30 days following the
effective date of the Change in Control based upon the length of
time within the performance period that has elapsed prior to the
effective date of the Change in Control. To the extent necessary,
this Agreement is hereby deemed an amendment of any such
outstanding equity award.
6. Change in Control .
For the purposes of this Agreement, a “Change in
Control” shall mean the occurrence of any of the following
events:
(a) individuals who, on the
date of this Agreement, constitute the Board of Directors of the
Company (the “Incumbent Directors”) cease for
any
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reason to constitute at least
a majority of such Board, provided that any person becoming a
director after the date of this Agreement and whose election or
nomination for election was approved by a vote of at least a
majority of the Incumbent Directors then on the Board shall be an
Incumbent Director; provided , however , that no
individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest
with respect to the election or removal of directors
(“Election Contest”) or other actual or threatened
solicitation of proxies or consents by or on behalf of any
“Person” (such term for purposes of this definition
being as defined in Section 3(a)(9) of the 1934 Act and as used in
Section 13(d)(3) and 14(d)(2) of the 1934 Act) other than the Board
(“Proxy Contest”), including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest,
shall be deemed an Incumbent Director; or
(b) any Person is or becomes
a “beneficial owner” (as defined in Rule 13d-3 under
the 1934 Act), directly or indirectly, of either (A) 20% or more of
the then-outstanding shares of common stock of the Company
(“Company Common Stock”) or (B) securities of the
Company representing 20% or more of the combined voting power of
the Company’s then outstanding securities eligible to vote
for the election of directors (the “Company Voting
Securities”); provided , however , that for
purposes of this subsection (b), the following acquisitions shall
not constitute a Change in Control: (v) an acquisition directly
from the Company, (w) an acquisition by the Company or a Subsidiary
of the Company, (x) an acquisition by a Person who is on the date
of this Agreement the beneficial owner, directly or indirectly, of
50% or more of the Company Common Stock or the Company Voting
Securities, (y) an acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
Subsidiary of the Company, or (z) an acquisition pursuant to a
Non-Qualifying Transaction (as defined in subsection (c) below);
or
(c) the consummation of a
reorganization, merger, consolidation, statutory share exchange or
similar form of corporate transaction involving the Company or a
Subsidiary (a “Reorganization”), or the sale or other
disposition of all or substantially all of the Company’s
assets (a “Sale”) or the acquisition of assets or stock
of another corporation (an “Acquisition”), unless
immediately following such Reorganization, Sale or Acquisition: (A)
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the outstanding Company
Common Stock and outstanding Company Voting Securities immediately
prior to such Reorganization, Sale or Acquisition beneficially own,
directly or indirectly, more than 60% of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the
corporation resulting from such Reorganization, Sale or Acquisition
(including, without limitation, a corporation which as a result of
such transaction owns the Company or all or substantially all of
the Company’s assets or stock either directly or through one
or more subsidiaries, the “Surviving
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Corporation”) in
substantially the same proportions as their ownership, immediately
prior to such Reorganization, Sale or Acquisition, of the
outstanding Company Common Stock and the outstanding Company Voting
Securities, as the case may be, and (B) no Person (other than (x)
the Company or any Subsidiary of the Company, (y) the Surviving
Corporation or its ultimate parent corporation, or (z) any employee
benefit plan (or related trust) sponsored or maintained by any of
the foregoing is the beneficial owner, directly or indirectly, of
20% or more of the total common stock or 20% or more of the total
voting power of the outstanding voting securities eligible to elect
directors of the Surviving Corporation, and (C) at least a majority
of the members of the board of directors of the Surviving
Corporation were Incumbent Directors at the time of the
Board’s approval of the execution of the initial agreement
providing for such Reorganization, Sale or Acquisition (any
Reorganization, Sale or Acquisition which satisfies all of the
criteria specified in (A), (B) and (C) above shall be deemed to be
a “Non-Qualifying Transaction”); or
(d) approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company.
7. Termination of
Employment .
(a) Death or
Retirement . Executive’s employment shall terminate
automatically upon Executive’s death or Retirement during the
Employment Period. For purposes of this Agreement,
“Retirement” shall mean retirement that would entitle
Executive to normal retirement benefits under the Company’s
then-current retirement plan.
(b) Disability . If
the Company determines in good faith that the Disability of
Executive has occurred during the Employment Period (pursuant to
the definition of Disability set forth below), it may give to
Executive written notice of its intention to terminate
Executive’s employment. In such event, Executive’s
employment with the Company shall terminate effective on the 30th
day after receipt of such written notice by Executive (the
“Disability Effective Date”), provided that, within the
30 days after such receipt, Executive shall not have returned to
full-time performance of Executive’s duties. For purposes of
this Agreement, “Disability” shall mean the inability
of Executive, as determined by the Board, to perform the essential
functions of his regular duties and responsibilities, with or
without reasonable accommodation, due to a medically determinable
physical or mental illness which has lasted (or can reasonably be
expected to last) for a period of six consecutive months. At the
request of Executive or his personal representative, the
Board’s determination that the Disability of Executive has
occurred shall be certified by two physicians mutually agreed upon
by Executive, or his personal representative, and the Company.
Failing such independent certification (if so requested by
Executive), Executive’s termination shall be deemed a
termination by the Company without Cause and not a termination by
reason of his Disability.
(c) Termination by the
Company . The Company may terminate Executive’s
employment during the Employment Period for Cause. For purposes of
this
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Agreement, a termination shall be
considered to be for “Cause” if it occurs in
conjunction with a determination by the Board that Executive has
committed or engaged in either (i) any act that constitutes, on the
part of Executive, fraud, dishonesty, breach of fiduciary duty,
misappropriation, embezzlement or gross misfeasance of duty; (ii)
willful disregard of published Company policies and procedures or
codes of ethics; or (iii) conduct by Executive in his office with
the Company that is grossly inappropriate and demonstrably likely
to lead to material injury to the Company, as determined by the
Board acting reasonably and in good faith; provided, that in the
case of (ii) or (iii) above, such conduct shall not constitute
“Cause” unless the Board shall have delivered to
Executive notice setting forth with specificity (A) the conduct
deemed to qualify as “Cause”, (B) reasonable action
that would remedy such objection, and (C) a reasonable time (not
less than 30 days) within which Executive may take such remedial
action, and Executive shall not have taken such specified remedial
action within the specified time.
(d) Termination by
Executive . Executive’s employment may be terminated by
Executive for Good Reason. For purposes of this Agreement,
“Good Reason” shall mean:
(i) the assignment to
Executive of any duties inconsistent in any material respect with
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Sectio
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