(a) “Cause” means that the Company may terminate the Grantee’s employment if, in the reasonable determination of the Company, (i) the Grantee engages in conduct that materially violates the policies of the Company, (ii) the Grantee fails to perform the essential functions of his or her job (except for a failure resulting from a bona fide illness or incapacity) or fails to carry out the Company’s reasonable directions issued by the Grantee’s supervisor, with respect to the Grantee’s material duties, (iii) the Grantee engages in embezzlement or misappropriation of corporate funds or other acts of fraud, dishonesty or self-dealing, or commits a felony or any significant violation or any material statutory or common law duty of loyalty to the Company, or (iv) the Grantee breaches a material provision of the Company’s Separation Pay Plan. Notwithstanding the foregoing, to the extent a Grantee is party to an employment agreement, Participation Agreement, or other agreement with the Company that contains a definition of “Cause” or a term of similar effect, the definition set forth in such employment agreement, Participation Agreement or other agreement, and not the definition set forth in the Separation Pay Plan, shall control.
(b) “Good Reason” means that a Grantee will be considered to have Good Reason to resign his or her employment if (i) such Grantee is a party to an employment agreement, Participation Agreement or otherpre-existing agreement with the Company that contains provisions for such Grantee to be entitled to severance payments or benefits based on a termination for “Good Reason” or a term of similar effect, and (ii) such Grantee fulfills the requirements set forth in the that employment agreement, Participation Agreement, or other agreement to, in fact, terminate for Good Reason (or a term of similar effect).
5. Withholding Taxes. Any amounts payable or otherwise provided under this letter are subject to withholding for applicable federal, state and local taxes or otherwise as required by law.
6. Non-Solicitation. Grantee and the Company recognize that, due to the nature of Grantee’s employment and relationship with the Company, Grantee will have access to and develop confidential business information, proprietary information, and trade secrets relating to the business and operations of the Company and its affiliates. Grantee acknowledges that such information is valuable to the business of the Company and its affiliates, and that disclosure to, or use for the benefit of, any person or entity other than the Company or its affiliates, would cause substantial damage to the Company. Grantee further acknowledges that his or her duties for the Company include the opportunity to develop and maintain relationships with the Company’s customers, employees, representatives and agents on behalf of the Company and that access to and development of those close relationships with the Company’s customers render Grantee’s services special, unique and extraordinary. As a result of Grantee’s position and customer contacts, Grantee recognizes that he or she will gain valuable information about (i) the Company’s relationship with its customers, their buying habits, special needs, and purchasing policies, (ii) the Company’s pricing policies, purchasing policies, profit structures, and margin needs, (iii) the skills, capabilities and other employment-related information relating to Company employees, and (iv) other matters of which Grantee would not otherwise know and that is not otherwise readily available. Grantee recognize that the good will and relationships described herein are assets and extremely valuable to the Company, and that loss of or damage to those relationships would destroy or diminish the value of the Company. In consideration for the grant of this Award, Grantee agrees as follows:
2
