BOSTON EDISON COMPANY
Change in Control Agreement
---------------------------
AGREEMENT, made this ___ day of ________________, 1996, by and between
________ ("Executive") and Boston Edison Company (the "Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its
shareholders for the Company to agree to provide benefits under the
circumstances described below to Executive and other executives who are
responsible for the policy-making functions of the Company and the overall
viability of the Company's business; and
WHEREAS, the Board recognizes that the possibility of a change of control
of the Company is unsettling to such executives and desires to make
arrangements at this time to help assure their continuing dedication to their
duties to the Company and its shareholders, notwithstanding any attempts by
outside parties to gain control of the Company; and
WHEREAS, the Board believes it important, should the Company receive
proposals from outside parties, to enable such executives, without being
distracted by the uncertainties of their own employment situation, to perform
their regular duties, and where appropriate to assess such proposals and
advise the Board as to the best interests of the Company and its shareholders
and to take such other action regarding such proposals as the Board determines
to be appropriate; and
WHEREAS, the Board also desires to demonstrate to the executives that the
Company is concerned with their welfare and intends to provide that loyal
executives are treated fairly; and
WHEREAS, the Board wishes to assure the executives of fair severance
should any of their employment terminate in specified circumstances following
a change of control of the Company and to assure the executives of other
benefits upon a change of control.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. In the event that any individual, corporation, partnership,
company, or other entity (a "Person"), which term shall include a "group"
(within the meaning of section 13(d) of the Securities Exchange Act of 1934
(the "Act")), begins a tender or exchange offer, circulates a proxy to the
Company's shareholders, or takes other steps to effect a "Change of Control"
(as defined in Exhibit A attached hereto and made a part hereof), Executive
agrees that he will not voluntarily leave the employ of the Company and will
render the services contemplated in the recitals to this Agreement until such
Person has terminated the efforts to effect a Change of Control or until a
Change of Control has occurred.
2. If, within 24 months following a Change of Control (the "Post
Change of Control Period") Executive's employment with the company is
terminated by the Company for any reason other than for "Cause" or
"Disability" (as defined paragraph 4 below), or as a result of Executive's
death, or Executive terminates such employment for Good Reason (as defined in
paragraph 5 below):
(a) The Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to the
sum of (i) the Executive's annual base salary ("Annual Base
Salary") through the date of such termination of employment to
the extent not theretofore paid, (ii) a prorated portion of the
target award payable under the Company's Executive Annual
Incentive Compensation Plan, or any comparable or successor plan
(the "Annual Plan") determined by calculating the product of, (A)
the target bonus award payable for the fiscal year in which the
date of termination occurs under the Annual Plan, times (B) a
fraction, the numerator of which is the number of days in the
current fiscal year through the date of termination of employment,
and the denominator of which is 365, (iii) a prorated portion of
the target award payable under the Company's Performance Share
Plan, or any comparable or successor plan (the "Long-Term Plan")
for the performance period ending on the last day of the fiscal
year during which the date of termination of employment occurs
determined by calculating the product of (A) the target award
payable for such performance period and (B) a fraction, the
numerator of which is the number of days in the current
performance period through the date of termination, and the
denominator of which is the actual number of days in the
performance period (provided that if any awards are expressed in
shares of common stock rather than cash, the Company will pay the
cash equivalent of such awards based on the closing price per
share as reported in the Wall Street Journal (Eastern Edition) New
York Stock Exchange Composite Transactions determined on the date
prior to the date of the Change of Control or the average per
share price for the 10 trading days preceding the date of the
Change of Control (whichever is higher)) and (iv) any compensation
for the fiscal year in which the date of termination occurs
previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in
each case to the extent not theretofore paid; and
(b) any stock, stock option or cash awards granted to the Executive by
the Company that would have become vested upon continued
employment by the Executive shall immediately vest in full
notwithstanding any provision to the contrary of such grant and
shall remain exercisable until the earlier of the fifth
anniversary of such termination and the latest date on which such
grant could have been exercised; and
(c) the Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to three
times: (A) the amount of the Executive's Annual Base Salary at
the rate in effect immediately prior to the date of termination or
at the rate in effect immediately prior to the Change of Control,
whichever is higher, and (B) the amount of the actual bonus paid
to the Executive under the Annual Plan and the Long-Term Plan for
the most recently completed fiscal year ended before the Change of
Control, or the target bonus payable under the Annual Plan and
Long-Term Plan for the fiscal year during which the termination of
employment occurs, whichever is higher (provided that if any
awards are expressed in shares of common stock rather than cash,
the Company will pay the cash equivalent of such awards based on
the closing price per share as reported in the Wall Street Journal
(Eastern Edition) New York Stock Exchange Composite Transactions
determined on the date prior to the date of the Change of Control
or the average per share price for the 10 trading days preceding
the date of the Change of Control (whichever is higher));
(d) the Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to the
full balance standing to his credit with the Company under any and
all deferred compensation plans or arrangements and the lump-sum
actuarial equivalent of the Executive's accrued benefit under any
supplement retirement plan or arrangement (the sum of the amounts
described in subsections (a) and (d) shall be hereinafter referred
to as the "Accrued Obligations"); and
(e) an amount equal to the excess of (i) the lump-sum actuarial
equivalent of the accrued benefit under (a) the Company's
qualified defined benefit Retirement Plan (the "Retirement Plan")
(utilizing actuarial assumptions no less favorable to the
Executive than those in effect under the Retirement Plan
immediately prior to the date of the Change of Control), and (b)
any supplemental retirement plan of the Company in which the
Executive participates (the "SERP") which the Executive would
receive if the Executive's employment continued for two years
after the date of termination assuming for these purposes that all
accrued benefits are fully vested, and further assuming that the
Executive's annual compensation for purposes of determining
benefits under the Retirement Plan and SERP ("Covered
Compensation") in each of the two years is at least equal to the
higher of Executive's annual rate of Covered Compensation for the
most recently completed fiscal year ending prior to the date of
the Change of Control or the year in which the Change of Control
occurs, over (ii) the lump-sum actuarial equivalent of the
Executive's actual accrued benefit (paid or payable), if any,
under the Retirement Plan and the SERP as of the date of
termination and;
(f) Executive, together with his dependents, will continue following
such termination of employment to participate fully at the
Company's expense in all welfare benefit plans, programs,
practices and policies, including without limitation, life,
medical, disability, dental accidental death and travel insurance
plans, maintained or sponsored by the Company immediately prior to
the Change of Control, or receive substantially the equivalent
coverage (or the full value thereof in cash) from the Company,
until the longer of the second anniversary of such termination or
any longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, provided, however,
that if the Executive becomes re-employed with another employer
and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided
under such other plan during such applicable period of
eligibility. For purposes of determining eligibility (but not the
time of commencement of benefits) of the Executive for any retiree
benefits pursuant to such plans, practices, programs and policies,
the Executive shall be considered to have remained employed until
two years after the date of termination and to have retired on the
last day of such period; and
(g) to the extent not theretofore paid or provided for, the Company
shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy, practice,
contract or agreement of the Company ("Other Benefits"); and
(h) the Company will promptly reimburse Executive for any and all
legal fees and expenses (including, without limitation,
stenographer fees, printing costs, etc.) incurred by him as a
result of such termination of employment, including without
limitation all fees and expenses incurred to enforce the
provisions of this Agreement or contesting or disputing that
the termination of his employment is for Cause or other than
for Good Reason (regardless of the outcome thereof).
Notwithstanding anything herein to the contrary, to the extent that any
payment or benefit provided for herein is required to be paid or vested an any
earlier date under the terms of any plan, agreement or arrangements, such
plan, agreement or arrangement shall control.
3. Death, Disability, Cause, Other Than For Good Reason.
----------------------------------------------------
(a) DEATH. If the Executive's employment shall terminate during the
Post Change of Control Period by reason of the Executive's death,
this Agreement shall terminate without further obligations to the
Executive's legal representatives under this Agreement, other than
for payment of Accrued Obligations and the timely payment or
provision of Other Benefits. Accrued Obligations shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of death.
(b) DISABILITY. If the Executive's employment is terminated during
the Post Change of Control Period by reason of the Executive's
Disability, this Agreement shall terminate without further
obligations to the Executive other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits.
Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the date of termination of employment.
For purposes of this Agreement, "Disability" shall mean the
absence of the Executive from the Executive's duties with the
Company on a full-time basis for 180 consecutive business days as
a result of incapacity due to mental or physical illness which is
determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the
Executive's legal representative. If the Company determines in
good faith that the Disability of the Executive has occurred
during the Post Change of Control Period, it may give the
Executive written notice of its intention to terminate the
Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after
receipt of such notice by the Executive, provided that, within the
30 days of such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties.
(c) CAUSE. If the Executive's employment shall be terminated for
Cause (as defined in Section 4 below) during the Post Change of
Control Period, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay the
Executive (A) his Annual Base Salary through the date of
termination, (B) the amount of any compensation previously
deferred by the Executive, and (C) Other Benefits, in each case to
the extent theretofore unpaid. If the Executive voluntarily
terminates employment during the Post Change of Control Period,
excluding a termination for Good Reason, this Agreement shall
terminate without further obligations to the Executive other than
for Accrued Obligations and the timely payment or provisions of
Other Benefits.
In such case, all Accrued Obligations shall be paid to the Executive in a
lump sum in cash within 30 days of date of the termination of employment.
4. "Cause" means only: (a) commission of a felony or gross neglect of
duty by the Executive which is intended to result in substantial personal
enrichment of the Executive at the expense of the Company, (b) conviction of a
crime involving moral turpitude, or (c) willful failure by the Executive of
his duties to the Company which failure is deliberate on the Executive's part,
results in material injury to the Company, and continues for more than 30 days
after written notice given to the Executive pursuant to a two-thirds vote of
all of the members of the Board at a meeting called and held for such purpose
(after reasonable notice to Executive) and at which meeting the Executive and
his counsel were given an opportunity to be heard, such vote to set forth in
reasonable detail the nature of the failure. For purposes of this definition
of Cause, no act or omission shall be considered to have been "willful" unless
it was not in good faith and the Executive had knowledge at the time that the
act or omission was not in the best interest of the Company. Any act, or
failure to act, based on authority given pursuant to a resolution duly adopted
by the Board or upon the instructions of the Chief Executive Officer or
another senior officer of the Company or based on the advice of counsel of the
Company shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interest of the Company.
5. Executive shall be deemed to have voluntarily terminated his
employment for Good Reason if the Executive leaves the employ of the Company
for any reason following:
(a) The assignment to the Executive of any duties inconsistent in any
respect with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or
responsibilities immediately prior to the Change of Control; or
any other action by the Company which results in a diminution in
such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(b) Any reduction in the Executive's rate of Annual Base Salary for
any fiscal year to less than 100% of the rate of Annual Base
Salary paid to him in the completed fiscal year immediately
preceding the Change of Control, or reduction in Executive's total
cash and stock compensation opportunities, including salary and
incentives, for any fiscal year to less than 100% of the total
cash and stock compensation opportunities made available to him in
the completed fiscal year immediately preceding the Change of
Control (for this purpose, such opportunities shall be deemed
reduced if the objective standards by which the Executive's
incentive compensation measured becomes stringent or the amount of
such compensation is materially reduced on a discretionary basis
from the amount that would be payable solely by reference to the
objectives; or
(c) Failure of the Company to continue in effect any retirement, life,
medical, dental, disability accidental death or travel insurance
plan, in which Executive was participating immediately prior to
the Change of Control unless the Company provides Executive with a
plan or plans that provide substantially similar benefits, or the
taking of any action by the Company that would adversely effect
Executive's participation in or materially reduce Executive's
benefits under any of such plans or deprive Executive of any
material fringe benefit enjoyed by Executive immediately prior to
the Change of Control other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof
given by the Executive; or
(d) The Company requires Executive to be based at any office or
location outside the Greater Boston Metropolitan Area or the
Company requires the Executive to travel on Company business to
a substantially greater extent than required immediately prior
to the date of Change of Control; or
(e) Any purported termination by the Company of the Executive's
employment otherwise than is expressly permitted by this
Agreement; or
(f) Any failure by the Company to comply with and satisfy Section 8
of this Agreement.
For purposes of this Section 5, any good faith determination of Good
Reason made by the Executive shall be conclusive.
6. If any payment or benefit received by Executive (whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional
payments required under this Section 6), would be subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code"), or any interest or penalties are incurred by the Executive with
respect to such excise tax) the Company will pay to Executive an additional
amount in cash (the "Additional Amount") equal to the amount necessary to
cause the aggregate payments and benefits received by Executive, including
such Additional Amount (net of all federal, state, and local income taxes and
all taxes payable as a result of the application of Sections 28OG and 4999 of
the Code and including any interest and penalties with respect to such taxes)
to be equal to the aggregate payments and benefits Executive would have
received, excluding such Additional Amount (net of all federal, state and
local income taxes) as if Sections 28OG and 4999 of the Code (and any
successor provisions thereto) had not been enacted into law.
Following the termination of Executive's employment, Executive may submit
to the Company a written opinion (the "Opinion") of a nationally recognized
accounting firm, employment consulting firm, or law firm selected by Executive
setting forth a statement and a calculation of the Additional Amount. The
determination of such firm concerning the extent of the Additional Amount
(which determination need not be free from doubt), shall be final and binding
on both Executive and the Company. The Company will pay to Executive the
Additional Amount not later than 10 days after such firm has rendered the
Opinion. The Company agrees to pay the fees and expenses of such firm in
preparing and rendering the opinion.
If, following the payment to Executive of the Additional Amount,
Executive's liability for the excise tax imposed by Section 4999 of the Code
on the payments and benefits received by Executive is finally determined (at
such time as the Internal Revenue Service is unable to make any further
adjustment to the amount of such liability) to be less than the amount thereof
set forth in the Opinion, Executive shall reimburse the Company, without
interest, in an amount equal to the amount by which the Additional Amount
should be reduced to reflect such decrease in the actual excise tax
liability. The calculation of such reimbursement shall be made by a
nationally recognized accounting firm, an employment consulting firm, or a law
firm selected by Executive, whose determination shall be binding on Executive
and the Company and whose fees and expenses therefor shall be paid by the
Company.
7. In the case of any dispute under this Agreement, Executive may
initiate binding arbitration in Boston, Massachusetts, before the American
Arbitration Association by serving a notice to arbitrate upon the Company or,
at Executive's election, institute judicial proceedings, in either case within
90 days of the effective date of his termination or, if later, his receipt of
notice of termination, or such longer period as may be reasonably necessary
for Executive to take such action if illness or incapacity should impair his
taking such action within the 90-day period. The Company shall not have the
right to initiate binding arbitration, and agrees that upon the initiation of
binding arbitration by Executive pursuant to this paragraph 7 the Company
shall cause to be dismissed any judicial proceedings it has brought against
Executive relating to this Agreement. The Company authorizes Executive from
time to time to retain counsel of his choice to represent Executive in
connection with any and all actions, proceedings, and/or arbitration, whether
by or against the Company or any director, officer, shareholder, or other
person affiliated with the Company, which may affect Executive's rights under
this Agreement. The Company agrees (i) to pay the fees and expenses of such
counsel, (ii) to pay the cost of such arbitration and/or judicial proceeding,
and (iii) to pay interest to Executive on all amounts owed to Executive under
this Agreement during any period of time that such amounts are withheld
pending arbitration and/or judicial proceedings. Such interest will be at the
base rate as announced from time to time by The First National Bank of Boston.
In addition, notwithstanding any existing prior attorney-client
relationship between the Company and counsel retained by Executive, the
Company irrevocably consents to Executive entering into an attorney-client
relationship with such counsel and agrees that a confidential relationship
shall exist between Executive and such counsel.
8. If the Company is at any time before or after a Change of Control
merged or consolidated into or with any other corporation or other entity
(whether or not the Company is the surviving entity), or if substantially all
of the assets thereof are transferred to another corporation or other entity,
the provisions of this Agreement will be binding upon and inure to the benefit
of the corporation or other entity resulting from such merger or consolidation
or the acquirer of such assets (the "Successor Entity"), and this paragraph 8
will apply in the event of any subsequent merger or consolidation or transfer
of assets. The Company will require any such Successor Entity to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such
transaction had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any Successor Entity which assumes and
agrees to perform this Agreement by operation of law or otherwise.
In the event of any merger, consolidation, or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise
limit Executive's right to or privilege of participation in any stock option
or purchase plan or any bonus, profit sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or arrangement which may
be or become applicable to executives of the corporation resulting from such
merger or consolidation or the corporation acquiring such assets of the
Company.
In the event of any merger, consolidation, or sale of assets described
above, references to the Company in this Agreement shall unless the context
suggests otherwise be deemed to include the entity resulting from such merger
or consolidation or the acquirer of such assets of the Company.
9. Any termination by the Company for Cause, or by the Executive for
Good Reason, shall be communicated by Notice of Termination to the other party
hereto given in accordance with the last paragraph of Section 14 of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated and (iii) if
the Date of Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date (which date shall be not more
than thirty days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting such fact
or circumstance in enforcing the Executive's or the Company's rights
hereunder.
"Date of Termination" means (i) if the Executive's employment is
terminated by the Company for Cause, or by the Executive for Good Reason, the
date of receipt of the Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's employment is terminated
by the Company other than for Cause or Disability, the Date of Termination
shall be the date on which the Company notifies the Executive of such
termination and (iii) if the Executive's employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of the
Executive or the effective date of the Disability, as the case may be.
10. All payments required to be made by the Company hereunder to
Executive or his dependents, beneficiaries, or estate will be subject to the
withholding of such amounts relating to tax and/or other payroll deductions as
may be required by law.
11. There shall be no requirement on the part of the Executive to seek
other employment or otherwise mitigate damages in order to be entitled to the
full amount of any payments and benefits to which Executive is entitled under
this Agreement, and the amount of such payments and benefits shall not be
reduced by any compensation or benefits received by Executive from other
employment.
12. Nothing contained in this Agreement shall be construed as a
contract of employment between the Company and the Executive, or as a right of
the Executive to continue in the employ of the Company, or as a limitation of
the right of the Company to discharge the Executive with or without Cause;
provided that the Executive shall have the right to receive upon termination
of his employment the payments and benefits provided in this Agreement and
shall not be deemed to have waived any rights he may have either at law or in
equity in respect of such discharge.
13. No amendment, change, or modification of this Agreement may be
made except in writing, signed by both parties.
14. This Agreement shall terminate on the third anniversary of the
date hereof, provided, however, that commencing on the date one year after the
date hereof, and on each annual anniversary of such date (each such date
hereinafter referred to as a "Renewal Date"), unless previously terminated,
the term of this Agreement shall be automatically extended so as to terminate
three years from such Renewal Date, unless at least sixty days prior to the
Renewal Date the Company shall give notice to the Executive that the term of
this Agreement shall not be so extended. This Agreement shall not apply to a
Change of Control which takes place after the termination of this Agreement.
Payments made by the Company pursuant to this Agreement shall be in lieu
of severance payments, if any, which might otherwise be available to Executive
under any severance plan, policy, program or arrangement generally applicable
to the employees of the Company. If for any reason Executive receives
severance payments (other than under this Agreement) upon the termination of
his employment with the Company, the amount of such payments shall be deducted
from the amount paid under this Agreement. The purpose of this provision is
solely to avert a duplication of benefits; neither this provision nor the
provisions of any other agreement shall be interpreted to reduce the amount
payable to Executive below the amount that would otherwise have been payable
under this Agreement.
The provisions of this Agreement shall be binding upon and shall inure
to the benefit of Executive, his executors, administrators, legal
representatives, and assigns, and the Company and its successors.
The validity, interpretation, and effect of this Agreement shall be
governed by the laws of The Commonwealth of Massachusetts. Any ambiguities
in this Agreement shall be construed in favor of the Executive.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement, which shall remain in full force and effect.
The Company shall have no right of set-off or counterclaims, in respect
of any claim, debt, or obligation, against any payments to Executive, his
dependents, beneficiaries, or estate provided for in this Agreement.
No right or interest to or in any payments shall be assignable by the
Executive; PROVIDED, however, that this provision shall not preclude him from
designating one or more beneficiaries to receive any amount that may be
payable after his death and shall not preclude the legal representative of his
estate from assigning any right hereunder to the person or persons entitled
thereto under his will or, in the case of intestacy, to the person or persons
entitled thereto under the laws of intestacy applicable to his estate. The
term "beneficiaries" as used in this Agreement shall mean a beneficiary or
beneficiaries so designated to receive any such amount, or if no beneficiary
has been so designated, the legal representative of the Executive's estate.
No right, benefit, or interest hereunder, shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt, or obligation, or to
execution, attachment, levy, or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void, and of no effect.
All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
-------------------
If to the Company: Boston Edison Company
----------------- 800 Boylston Street
Boston, MA 02199
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
IN WITNESS WHEREOF, Boston Edison Company and Executive have each caused
this Agreement to be duly executed and delivered as of the date set forth
above.
BOSTON EDISON COMPANY
By:______________________________
Name:
Title:
________________________________
Executive
EXHIBIT A
CHANGE OF CONTROL. For the purposes of this Agreement, a "Change of
Control" shall mean:
(a) The acquisition by any Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30%
or more of either (i) the then outstanding shares of common stock
of the Company (the "Outstanding Company Common Stock") or (ii)
the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (i) any acquisition directly from the Company,
(ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained
by the Company or any corporation controlled by the Company or
(iv) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of subsection (c)
of this Exhibit A; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual
becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose 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; or
(c) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of
the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (i) 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
Business Combination beneficially own, directly or indirectly,
more than 50% 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 Business Combination (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 either
directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Company Common Stock and
outstanding Company Voting Securities, as the case may be, (ii) no
Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 30% or
more of, respectively, the then outstanding shares of common stock
of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of
the members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.