Exhibit 10.4
Syntroleum - Employment
Agreement
CONFIDENTIAL
Employment
Agreement
CONFIDENTIAL
THIS EMPLOYMENT
AGREEMENT (the “Agreement”) is made and entered into on
the 24 th
day of
April, 2007 by and between Syntroleum Corporation, a Delaware
corporation (the “Company”), and Edward G. Roth, an
individual (the “Employee”).
WHEREAS, the Company
and the Employee are parties to an existing employment agreement,
entered into the 6 th
day of
July, 2004 (the “Prior Agreement”).
WHEREAS, the Company desires to
continue an existing employment relationship with Employee and
Employee is willing to accept such employment on the amended and
restated terms and conditions set forth herein.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter contained, the
Company and Employee hereby agree as follows.
1. Employment and Duties .
The Company employs Employee in the capacity of President and Chief
Operating Officer, located at Company headquarters in Tulsa,
Oklahoma, or in such other position and at such location as the
Company may direct or desire and Employee hereby accepts such
employment, on the terms and conditions hereinafter set forth.
Employee agrees to perform such services and duties (including
reasonable travel) and hold such offices at such locations (subject
to the “Good Reason” provisions in this Agreement) as
may be reasonably assigned to him from time to time by the Company
and to devote substantially his full business time, energies and
best efforts to the performance thereof to the exclusion of all
other business activities substantially as those engaged in by
Company, except any activities disclosed to the Company in advance
and consented to by the Company.
2. Compensation . As
compensation for the services to be rendered by Employee to the
Company pursuant to this Agreement, Employee shall be paid the
following compensation and other benefits.
(a) Salary in the amount of $260,000
per year, payable in equal bi-weekly installments in arrears, or
such higher compensation as may be established, but not guaranteed,
by the Company from time to time. Payments of salary shall be made
in accordance with the Company’s usual payroll
procedures.
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CONFIDENTIAL
(b) Minimum annual
bonus in the amount of 50% of base annual salary, provided that
Employee remains employed as of December 31 of the calendar
year, payable as soon as administratively reasonable after the end
of each calendar year, but in no event later than
March 15 th
of the
following year.
(c) Employee shall be eligible to
participate, to the extent he may be eligible, in any group medical
and hospitalization, profit sharing, retirement, life insurance or
other employee benefit plans which the Company may from time to
time offer to its similarly situated employees. All group insurance
provided to Employee shall be in such form and provide such
coverage as is provided to other similarly situated employees of
the Company. The Company shall purchase a term life insurance
policy for Employee in the amount of $1,560,000 for the first year
of this Agreement, $1,170,000 for the second year of this
Agreement, and thereafter each year in the amount of $780,000. In
addition, the Company shall purchase a disability policy for
Employee which shall pay Employee one hundred per cent
(100%) of Employee’s yearly salary during each year of
his disability.
(d) All compensation payments to
Employee shall be made subject to normal deductions therefrom,
including federal and state social security and withholding
taxes.
3. Expenses . The Company
shall reimburse Employee for his actual out-of-pocket expenses
incurred in carrying out his duties hereunder in the conduct of the
Company’s business, which expenses shall be limited to
ordinary and necessary items and which shall be supported by
vouchers, receipts or similar documentation submitted in accordance
with the Company’s expense reimburse policy and as required
by law. Both the Company and the Employee hereby agree that the
Employee will move, at the Company’s expense according to its
standard moving policy, attached hereto as Exhibit A, from Houston,
Texas to Tulsa, Oklahoma for the term of this Agreement. Company
and Employee agree that the provision in Section 2.5 of the
moving policy which allows the Company to exclude homes with more
than five acres from the Managed Relocation Service Program shall
not apply to Employee.
4. Vacations and Leave .
Employee shall be entitled to 4 weeks of vacation and leave in
accordance with the Company’s policies in effect from time to
time and in addition to Company sponsored holidays.
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CONFIDENTIAL
5. Non-Disclosure of Confidential
Information .
(a) Employee acknowledges that in
and as a result of his employment by the Company, he will be making
use of, acquiring, and/or adding to the Company’s Trade
Secret Information. Except as required in the performance of
Employee’s duties under this Agreement, Employee will not use
any Trade Secret Information of the Company for Employee’s
own benefit or purposes or disclose to third parties, directly or
indirectly, any Trade Secret Information of the Company, either
during or after Employee’s employment with the Company unless
such Trade Secret Information is disseminated by Employee in the
normal course of the Company’s business subject to standard
confidentiality or non-disclosure agreements or as required by
law.
(b) As used in this Agreement,
“Trade Secret Information” means information, including
any formula, pattern, compilation, program, device, method,
technique or process, that:
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i.
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derives
independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper
means by other persons who can obtain economic value from its
disclosure or use, and
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ii.
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is the subject
of efforts that are reasonable under the circumstances to maintain
its secrecy. For purposes of this Agreement, “Trade Secret
Information” includes both information disclosed to Employee
by the Company and information developed by Employee in the course
of his employment with the Company. The types and categories of
information which the Company considers to be its Trade Secret
Information include, without limitation:
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a.
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specifications,
descriptions, designs, dimensions, content (including chemical
composition) and tolerances of products, parts and
components;
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b.
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plans,
blueprints, design packages construction, part and assembly
drawings and diagrams,
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c.
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design,
construction and component costs and cost estimates,
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d.
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the existence,
terms or conditions of any agreements (including license
agreements) between the Company and any third party,
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e.
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computer
programs (whether in the form of source code, object code or any
other form, including software, firmware and programmable array
logic), formulas, algorithms, methods, techniques, processes,
designs, specifications, diagrams, flow charts, manuals,
descriptions, instructions, explanations, improvements, and the
ideas, systems and methods of operation contained in such
programs,
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f.
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information
concerning or resulting from research and development work
performed by the Company;
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g.
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information
concerning the Company’s management, financial condition,
financial operations, purchasing activities, sales activities,
marketing activities and business plans;
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h.
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(h) information acquired or compiled by the
Company concerning actual or potential customers; and
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i.
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all other types
and categories of information (in whatever form) with respect to
which, under all the circumstances, Employee knows the Company
intends or expects secrecy to be maintained and as to which the
Company has made reasonable efforts to maintain its
secrecy.
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(c) In the event that Employee is
requested or required by applicable law or by deposition,
interrogatory, request for documents, subpoena, civil investigative
demand or similar process to disclose any of the Company’s
Trade Secret Information, Employee shall provide the Company with
prompt written notice of such request or requirement prior to
making the requested disclosure, and shall cooperate with the
Company (at Company’s cost) so that the Company may seek to
protect the proprietary nature of such Trade Secret Information
through available procedures, including a protective order or other
appropriate remedy.
(d) The Company may also advise
Employee from time to time as to restrictions upon the use or
disclosure of specified information which has been licensed or
otherwise disclosed to the Company by third parties pursuant to
license or confidential disclosure agreements which contain
restrictions upon the use or disclosure of such information.
Employee agrees to abide by the restrictions upon use and/or
disclosure contained in such agreements.
(e) Employee has not and will not
use or disclose to the Company any confidential or proprietary
information belonging to others without the written consent of the
person to whom such information is confidential, and Employee
represents that his employment with the Company will not require
the use of such information or the violation of any confidential
relationship with any third party.
6. Other Property of the
Company . All documents, encoded media, and other tangible
items provided to Employee by the Company or prepared, generated or
created by Employee or others in connection with any business
activity of the Company are the property of the Company. Upon
termination of Employee’s employment with the Company,
Employee will promptly deliver to the Company all such documents,
media and other items in his possession, including all complete or
partial copies, recordings, abstracts, notes (excluding personal
notes) or reproductions of any kind made from or about such
documents, media, items or information contained therein. Employee
will neither have nor claim any right, title or interest in any
trademark, service mark or trade name owned or used by the Company.
Employee shall be entitled to have reasonable amounts of personal
information on the computer assigned to him by Company in
directories designated “Personal” and, subject to
routine server maintenance
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requirements, such directories and associated
files shall not be subject to search, review or ownership by the
Company. In the event that the Company, pursuant to its approved
Company policies, needs to review the directories and files marked
“Personal” by the Employee, such review shall be
conducted by a third party.
7. Inventions and Works of
Authorship .
(a) Employee agrees to assign and
hereby irrevocably assigns to the Company all of Employee’s
right, title and interest in and to any and all Inventions and
Works of Authorship made, generated or conceived by Employee during
the period of his employment with the Company, and Employee agrees
to and shall promptly disclose all such Inventions and Works of
Authorship to the Company in writing. As used herein,
“Invention” means any discovery, improvement,
innovation, idea, formula, or shop right (whether or not
patentable, whether or not put into writing and whether or not put
into practice) made, generated or conceived by Employee (whether
alone or with others) while employed by the Company. For purposes
of this Agreement, any discovery, improvement, innovation, idea,
formula, or shop right (whether or not patentable, and whether or
not put into practice) relating to the business of the Company or
to the Company’s actual or demonstrably anticipated business,
research or development with respect to which Employee files a
patent application within two years after termination of employment
with the Company shall be presumed to be an Invention. As used
herein, “Work of Authorship” means any original work of
authorship within the purview of the copyright laws of the United
States of America, and both the Company and Employee intend and
agree that all Works of Authorship created by Employee in the
course of his employment with the Company will be and shall
constitute works made for hire within the meaning and purview of
such copyright laws.
(b) Employee will execute and assign
any and all applications, assignments, and other documents and will
render all assistance which may be reasonably necessary for the
Company to obtain patent, copyright, or any other form of
intellectual property protection with respect to all Inventions and
Works of Authorship in all countries and will cooperate with
Syntroleum as reasonably necessary to enforce any such intellectual
property protection. The Company will pay Employee $200 for each
patent issued to the Company upon which Employee’s name
appears as an inventor.
(c) The provisions of this Paragraph
7 do not apply to an invention for which no equipment, supplies,
facility or Trade Secret Information of the Company was used and
which was developed entirely on Employee’s own time, and
which does not relate (i) directly or indirectly to the
business research or development of the Company, or (ii) to
the Company’s actual or demonstrably anticipated business,
research or development. A reasonable
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determination of the applicability of this
Paragraph 7(a) to an Employee’s invention shall be made by a
third party at Syntroleum’s expense after the Employee
submits notification in writing of the invention. Said notice shall
include adequate detail for Syntroleum to evaluate the invention.
The determination of the applicability of this Paragraph 7(a) to an
Employee’s invention is solely under the control of
Syntroleum’s appointed third party and shall be binding upon
Employee.
8. Limited Covenants
.
(a) Non-Solicitation of
Customers/Licensees — Employee further acknowledges that,
while employed by the Company, he will have contact with and become
aware of the Company’s customers and licensees and their
respective representatives, including their names and addresses,
specific needs and requirements, as well as leads and references to
prospective customers and licensees. Employee further acknowledges
that loss of such customers or licensees would cause the Company
great and irreparable harm. Employee agrees that for a period of
two years following termination of Employee’s employment with
the Company for any reason, voluntarily or involuntarily, Employee
will not directly or indirectly solicit, contact, call upon,
communicate with or attempt to communicate with any customer or
licensee, former customer or licensee, or prospective customer or
licensee of the Company for the purpose of selling, installing,
implementing, or modifying any Competing Product; provided however,
that nothing herein shall prohibit the Employee from general
advertising for customers not specifically targeting any specific
customers or licensees of the Company or from working for such
customers or licensees responding to such advertisements. This
restriction shall apply to any customer or licensee, former
customer or licensee, or prospective customer or licensee of the
Company, whether Employee had direct contact or not.
(b) Non-Solicitation of Company
Employees — The Employee agrees that for as long as he is
employed by the Company and for a period of two years after
termination of Employee’s employment with the Company for any
reason, voluntarily or involuntarily, Employee will not solicit,
recruit, hire or attempt to solicit, recruit or hire, directly or
by assisting others, any other employee of the Company.
(c) “Competing
Product” and “contact” defined . As used in
this Agreement, (i) “Competing Product” means any
product (including, without limitation, any chemical formula or
process) which is or may be marketed in competition with any
product marketed or under development by the Company at any time,
and (ii) “contact” means interaction between
Employee and a customer or licensee, former customer or licensee,
or prospective customer or licensee of the Company, which takes
place to further any business relationship; or
performing
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services for the customer or licensee, former
customer or licensee, or prospective customer or licensee on behalf
of the Company.
9. Reasonableness of
Restrictions .
(a) Employee expressly acknowledges
that he has carefully read and considered the provisions of
Paragraphs 5, 6, 7, and 8, and, having done so, agrees that the
restrictions set forth in these Paragraphs, including, but not
limited to, the time periods and geographic areas of restriction
are fair and reasonable and are reasonably required for the
protection of the interests of the Company and its officers,
directors, shareholders and other employees.
(b) In the event that,
notwithstanding the foregoing, any of the provisions of Paragraphs
5, 6, 7, and 8 shall be held to be invalid or unenforceable, the
remaining provisions thereof shall nevertheless continue to be
valid and enforceable as though the invalid or unenforceable parts
had not been included therein. In the event that any provision of
Paragraphs 5, 6, 7 and 8 relating to the time period and/or the
areas of restriction and/or related aspects shall be declared by a
court of competent jurisdiction to exceed the maximum
restrictiveness such court deems reasonable and enforceable, the
time period and/or areas of restriction and/or related aspects
deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the
restriction shall remain enforceable to the fullest extent deemed
reasonable by such court.
10. Requests for
Clarification . In the event Employee is uncertain as to the
meaning of any provision of this Agreement or its application to
any particular information, item or activity, Employee will inquire
in writing to the Company, specifying any areas of uncertainty. The
Company will respond in writing within ten banking days and will
endeavor to clarify any areas of uncertainty, including such things
as whether it considers particular information to be its Trade
Secret Information or whether it considers any particular activity
or employment to be in violation.
11. Remedies . In the event
of a breach or threatened breach of any of the covenants in
Paragraphs 5, 6, 7 and 8, the Company shall have the right to seek
monetary damages and equitable relief, including specific
performance by means of an injunction against Employee or against
Employee’s partners, agents, representatives, servants,
employers, employees, and/or any and all persons acting directly or
indirectly by or with him, to prevent or restrain any such
breach.
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12. Term and Termination
.
(a) The term of this Agreement shall
be for an initial term of 48 months from the effective date hereof,
unless sooner terminated as provided herein, and shall thereafter
be automatically renewed for successive terms of 12 months each
unless sooner terminated as provided herein.
(b) Employment of Employee under
this Agreement may be terminated:
(i) by the Company upon the
death of Employee.
(ii) by the Company if Employee
becomes disabled. For the purposes of this Agreement, Employee will
be deemed disabled if he
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i.
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has been
declared legally incompetent by a final court decree (the date of
such decree being deemed to be the date on which the disability
occurred), or
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ii.
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receives
disability insurance benefits from any disability income insurance
policy maintained by the Company for a period of six consecutive
months, or
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iii.
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has been found
to be disabled pursuant to a disability determination.
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A “disability
determination” means a finding that Employee, because of a
medically determinable disease, injury, or other mental or physical
disability, is unable to perform substantially all of his regular
duties to the Company and that such disability is determined or
reasonably expected to last at least six months. The disability
determination shall be based upon the written opinion of the
physician regularly attending Employee whose disability is in
question. If the Company disagrees with the opinion of this
physician (the “First Physician”), it may engage, at
its own expense, another physician of its choice (the “Second
Physician”) to examine Employee. If the First and Second
Physicians agree in writing that Employee is or is not disabled,
their written opinion shall, except as otherwise set forth in this
subsection, be conclusive on the issue of disability.
If the First and Second Physicians
disagree on the disability of Employee, they shall choose a third
consulting physician (whose expense shall be borne by the Company),
and the written opinion of a majority of these three
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physicians shall, except as
otherwise provided in this subsection, be conclusive as to
Employee’s disability. The date of any written opinion
conclusively finding Employee to be disabled is the date on which
the disability will be deemed to have occurred. If there is a
conclusive finding that Employee is not totally disabled, the
Company shall have the right to request additional disability
determinations provided it agrees to pay all the expenses of the
disability determinations and does not request an additional
disability determination more frequently than once every three
months. In connection with any disability determination, Employee
hereby consents to any required medical examination, and agrees to
furnish any medical information requested by any examining
physician and to waive any directly applicable physician-patient
privilege that may arise because of such examination. All
physicians except the First Physician must be board-certified in
the specialty most closely related to the nature of the disability
alleged to exist.
(iii) under any retirement policy
applicable to all executive officers adopted by the
Company.
(iv) by mutual agreement of Employee
and the Company.
(v) by the Company upon the
dissolution and liquidation of the Company (other than as part of a
reorganization, merger, consolidation or sale of all or
substantially all of the assets of the Company whereby the business
of the Company is continued).
(vi) by the Company for just cause
at any time upon written notice. For purposes of this Agreement,
“just cause” may include, but is not necessarily
limited to, the following:
(A) Employee’s material breach
of his obligations, duties and responsibilities under any term or
provision of this Agreement, which breach remains uncured for a
period of ten banking days after written notice by the Company to
Employee;
(B) Employee’s failure to
adhere to the reasonable standards of performance prescribed by the
Company;
(C) Employee’s act of
insubordination to the Company’s Board of
Directors;
(D) Employee’s gross
negligence or willful misconduct in the performance of his duties
under this Agreement;
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(E) Employee’s dishonesty,
fraud, misappropriation or embezzlement in the course of, related
to or connected with the business of the Company;
(F) Employee’s conviction of a
material felony; or
(G) Employee’s failure (after
written notice to Employee of such failure and Employee not
correcting such failure within ten banking days of such notice) to
devote his time, attention and best efforts to the business of the
Company as provided in this Agreement. The determination of
“just cause” under subsections (A) through
(G) shall be made at the sole discretion and decision of
Syntroleum.
(vii) by either the Company or
Employee for any reason upon 15 days written notice.
(viii) by Employee for “Good
Reason”
(c) Any termination of
Employee’s employment, either by the Company or Employee,
shall be communicated by a written notice of termination to the
other party.
(d) If Employee’s employment
is terminated pursuant to the terms of this Agreement for any
reason, Employee shall be entitled to all arrearages of salary and
expenses up to and including the date of termination but shall not
be entitled to further compensation, except as expressly provided
in paragraph (f) below.
(e) Upon termination of employment
for any reason, Employee shall deliver all Trade Secret Information
of the Company to an authorized representative of the Company, and
the non disclosure provisions of Paragraph 5 shall survive
such termination and shall remain in full force and effect for a
period of 15 years from such termination.
(f) Should Employee’s
employment be terminated by Company pursuant to Paragraph 12(b)
(iii), (iv), (v), (vii) or (viii), Company will pay Employee a
severance equal to the greater of: (i) an amount equal to 300%
of his yearly salary or (ii) an amount equal to 150% of his
monthly salary for the number of months remaining in the Term so
long as Employee timely executes (without revoking) a Waiver and
Release Agreement in substantially the form attached hereto as
Exhibit B (which in no case shall be any less favorable to Employee
than the one attached hereto in Exhibit B). The amount in severance
to be paid shall be paid out in equal installments over, in the
case of (i) above, twenty four months and, in the case of
(ii) above, the number of months remaining in the Term
according to normal biweekly pay periods and subject to normal tax
withholding. If he does not accept the terms of the Waiver and
Release Agreement
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(which in no case shall be any less favorable to
Employee than the one attached hereto as Exhibit B) within the time
period specified therein (which in no event shall be later than 45
days after the date such agreement is offered to him), he will be
entitled to nothing more than all arrearages of salary, accrued
vacation time, and expenses up to and including the date of
termination. For purposes of Sections 12(f) and 13,
“Term” shall be defined as a forty-eight
(48) month period beginning on March 16, 2007.
(g) Should Employee’s
employment be terminated by Company or Employee pursuant to
Paragraph 12(b)(iii), (iv), (v), (vii) or (viii) or
Paragraph (13) prior to the fourth anniversary of the
Agreement Effective Date, the Company will pay for Employee’s
moving expenses from Tulsa, Oklahoma back to Houston, Texas or
equivalent, in accordance with the Company’s standard moving
policy, which is attached hereto as Exhibit A. Company and Employee
agree that the provision in Section 2.5 of the moving policy
which allows the Company to exclude homes with more than five acres
from the Managed Relocation Service Program shall not apply to
Employee.
13. Change of Control . In
the event of a Change of Control of the Company and during the
one-year period immediately following any Change of Control, should
Employee’s employment be terminated by Company pursuant to
Paragraph 12(b) (iii), (iv), (v), (vii) or (viii) or
(ii) the Employee terminates his employment for Good Reason,
Company will pay Employee a severance equal to the greater of:
(a) an amount equal to 300% of his yearly salary or
(b) an amount equal to 150% of his monthly salary for the
number of months remaining in the Term so long as Employee timely
executes (without revoking) a Waiver and Release Agreement in
substantially the form attached hereto as Exhibit B (which in no
case shall be less favorable to Employee). The amount in severance
to be paid shall be paid out in equal installments over, in the
case of (a) above, twenty four months and, in the case of
(b) above, the number of months remaining in the Term
according to normal biweekly pay periods and subject to normal tax
withholding. If he does not accept the terms of the Waiver and
Release Agreement (which in no case shall be less favorable to
Employee than the one attached hereto as Exhibit B) within the time
period specified therein (which in no event shall be later than 45
days after the date such agreement is offered to him), he will be
entitled to nothing more than all arrearages of salary, accrued
vacation time, and expenses up to and including the date of
termination.
(a) Anything in this Agreement to
the contrary notwithstanding, if a Change of Control occurs and if
the Employee’s employment with the Company is terminated
prior to the date on which the Change of Control occurs, and if it
is reasonably demonstrated by the Employee that such termination of
employment (i) was at the request of a third party who
has
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taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with
or anticipation of the Change of Control, then for all purposes of
this Agreement, the “Change of Control” shall be deemed
to have occurred on the date immediately prior to the date of such
termination of employment.
(b) As used in this Agreement, the
terms set forth below shall have the following respective
meanings:
(i) “Affiliate” shall
have the meaning ascribed to such term in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act, as in effect on the
Agreement Effective Date.
(ii) “Agreement Effective
Date” shall mean March 16, 2007.
(iii) “Associate” shall
mean, with reference to any Person, (a) any corporation, firm,
partnership, association, unincorporated organization or other
entity (other than the Company or a subsidiary of the Company) of
which such Person is an officer or general partner (or officer or
general partner of a general partner) or is, directly or
indirectly, the Beneficial Owner of 10% or more of any class of
equity securities, (b) any trust or other estate in which such
Person has a substantial beneficial interest or as to which such
Person serves as trustee or in a similar fiduciary capacity and
(c) any relative or spouse of such Person, or any relative of
such spouse, who has the same home as such Person.
(iv) “Beneficial Owner”
shall mean, with reference to any securities, any Person
if:
(a) such Person or any of such
Person’s Affiliates and Associates, directly or indirectly,
is the “beneficial owner” of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Exchange
Act, as in effect on the Agreement Effective Date) such securities
or otherwise has the right to vote or dispose of such securities,
including pursuant to any agreement, arrangement or understanding
(whether or not in writing); provided, however, that a Person shall
not be deemed the “Beneficial Owner” of, or to
“beneficially own,” any security under this subsection
(a) as a result of an agreement, arrangement or understanding
to vote such security if such agreement,
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arrangement or understanding:
(i) arises solely from a revocable proxy or consent given in
response to a public (i.e., not including a solicitation exempted
by Rule 14a-2(b)(2) of the General Rules and Regulations under the
Exchange Act) proxy or consent solicitation made pursuant to, and
in accordance with, the applicable provisions of the General Rules
and Regulations under the Exchange Act and (ii) is not then
reportable by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report);
(b) such Person or any of such
Person’s Affiliates and Associates, directly or indirectly,
has the right or obligation to acquire such securities (whether
such right or obligation is exercisable or effective immediately or
only after the passage of time or the occurrence of an event)
pursuant to any agreement, arrangement or understanding (whether or
not in writing) or upon the exercise of conversion rights, exchange
rights, other rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner of,
or to “beneficially own,” (i) securities tendered
pursuant to a tender or exchange offer made by such Person or any
of such Person’s Affiliates or Associates until such tendered
securities are accepted for purchase or exchange or
(ii) securities issuable upon exercise of Exempt Rights;
or
(c) such Person or any of such
Person’s Affiliates or Associates (i) has any agreement,
arrangement or understanding (whether or not in writing) with any
other Person (or any Affiliate or Associate thereof) that
beneficially owns such securities for the purpose of acquiring,
holding, voting (except as set forth in the proviso to subsection
(a) of this definition) or disposing of such securities or
(ii) is a member of a group (as that term is used in Rule
13d-5(b) of the General Rules and Regulations under the Exchange
Act) that includes any other Person that beneficially owns such
securities;
provided, however, that nothing in
this definition shall cause a Person e
