Exhibit 10.1
OMNICOM GROUP INC.
SENIOR EXECUTIVE RESTRICTIVE COVENANT AND RETENTION PLAN
ARTICLE I - PREAMBLE
1.1 The purpose of this Senior Executive Restrictive Covenant and Retention Plan
(the "Plan") is to secure non-competition, non-solicitation, non-disparagement
and consulting agreements with Executive Officers for a significant period of
time, and strengthen the retention aspect of Executive Officers' total
compensation.
1.2 This Plan shall be (i) operated in good faith compliance with the provisions
of Section 409A of the Internal Revenue Code of 1986, as amended (the "Internal
Revenue Code"), prior to the calendar year 2008, and (ii) amended on or before
December 31, 2007 to take into account the requirements of Section 409A of the
Internal Revenue Code.
1.3 This Plan may be amended at any time and from time to time by the Committee
to comply with the requirements of Section 409A of the Internal Revenue Code,
and regulations and interpretations issued thereunder. Notwithstanding Section
10.1 of the Plan, any such amendment may be made without the consent of any
Participant or Beneficiary, regardless of whether such amendment adversely
affects any benefits or rights of a Participant or Beneficiary arising under the
terms of the Plan.
1.4 This Plan shall be effective as of December 15, 2006.
ARTICLE II - DEFINITIONS
The following terms shall have the meaning set forth below:
2.1 "Annual Cap" means $1,250,000 for the first payment to any Participant;
provided, however, that the Annual Cap shall be adjusted annually (beginning
with the second annual payment to the Participant) by the most recent
Cost-of-Living Adjustment used by the United States Social Security
Administration. Notwithstanding anything else to the contrary, the Annual Cap
shall not be increased by more than 2.5% per calendar year.
2.2 "Beneficiary" means any person, persons, entity or entities designated in
writing by the Participant to the Company to receive payment, if any, to be made
hereunder following the death of the Participant, and in the absence of such
designation, means (i) the Participant's surviving spouse, while living, and
(ii) if there be no surviving spouse or upon the death of the surviving spouse,
then to the estate of the Participant.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Committee" means the Compensation Committee of the Board, or if there
should be no Compensation Committee, means a committee of not less than three
members of the Board
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none of whom shall, while serving as a member of the Committee, be eligible to
receive a benefit under the Plan from the Company.
2.5 "Company" means Omnicom Group Inc., a New York corporation.
2.6 "Disability" means the inability of the Participant, by reason of physical
condition, mental illness or accident, to perform substantially all of the
duties of the position at which he or she was employed by the Employer when such
disability commenced. The Committee shall make all determinations as to
"Disability," after a hearing at which the Participant shall be entitled to be
present with counsel of his or her choice and be heard by the Committee, and the
determination by the Committee shall be final and conclusive.
2.7 "Employee" means any person who is a full-time employee of an Employer.
2.8 "Employer" means the Company or a Subsidiary.
2.9 "Executive Officer" means, as determined by the Board on an annual basis,
the Company's president, any vice president of the Company in charge of a
principal business unit, division or function (such as sales, administration or
finance), any other officer who performs a policy making function or any other
person who performs similar policy making functions for the Company. Executive
Officers of Subsidiaries may be deemed Executive Officers of the Company if they
perform such policy making functions for the Company.
2.10 "Employer Group" means the Company and all Subsidiaries.
2.11 "Final Average Pay" means the Participant's average annual Pay determined
using the highest three (3) years of Pay during the Employee's employment with
the Employer, unless otherwise defined by the Participant's Senior Executive
Restrictive Covenant and Retention Plan Agreement. For this purpose, only full
years of employment will be taken into account and partial years of employment
will be disregarded.
2.12 "Participant" means a person who participates in the Plan in accordance
with Article V below.
2.13 "Plan" means this Omnicom Group Inc. Senior Executive Restrictive Covenant
and Retention Plan, as may be amended from time to time.
2.14 "Pay" means the base salary plus bonus and other incentive compensation
earned in respect of any calendar year by the Participant, whether or not paid
to the Participant or waived or deferred by the Participant, excluding all other
forms of compensation, such as severance pay, contributions under benefit plans,
and the compensatory elements of stock awards.
2.15 "Percentage" means 5% plus 2% per Year of Executive Service, unless
otherwise defined by the Participant's Senior Executive Restrictive Covenant and
Retention Plan Agreement. Unless otherwise limited by the Participant's Senior
Executive Restrictive Covenant and Retention Plan Agreement, in no event may the
Percentage exceed 35%.
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2.16 "Senior Executive Restrictive Covenant and Retention Plan Agreement" means
a written agreement containing terms and conditions that are deemed appropriate
by the Committee.
2.17 "Subsidiary" means any company in which the Company holds, directly or
indirectly, 50% or more of its outstanding voting stock.
2.18 "Year of Executive Service" means each complete or partial Year of Service
during which the Participant was an Executive Officer.
2.19 "Year of Service" means each consecutive period of 365 days the Participant
is in the continuous employ of a member or members of the Employer Group. For
purposes of this Section, "continuous employ of a member or members of the
Employer Group" means consecutive employment by members of the Employer Group
without interruption by reason of self-employment or employment by a third party
employer, except as provided in Section 2.19(b) of the Plan.
The Participant shall be in the employ of the Employer regardless of
absences by reason of:
(a) sick leave, vacation leave, or other special leave approved by the
Employer which does not exceed six months, provided the Participant returns to
work for the Employer not later than the expiration date of the authorized leave
of absence; and
(b) time spent in the service of others at the request of, or with the
approval of, the Employer, provided the Participant returns to work for the
Employer within fifteen (15) days following cessation of work for such other
party.
ARTICLE III - COMPANY'S PAYMENT OBLIGATION CONDITIONAL ON
PARTICIPANT REFRAINING FROM COMPETITIVE AND OTHER
ACTIVITIES AFTER SEVERANCE OF EMPLOYMENT
3.1 It is a condition of the Company's obligation to make payments hereunder
that from the date of the Participant's employment termination described in
Section 6.1 of the Plan that shall have given rise to the obligation to pay and
until the close of the last calendar year in respect of which the Participant
is entitled to receive payments hereunder:
(a) that the Participant shall not, directly or indirectly, engage in, nor
become employed as an employee or retained as a consultant by any of the top 15
marketing services organizations as reported most recently by Advertising Age
(determined at the time of entering into the Senior Executive Restrictive
Covenant and Retention Plan Agreement), or any of such marketing organizations'
subsidiaries in the United States or any other country ("Protected Business");
provided, that, nothing shall prohibit the Participant from, directly or
indirectly, engaging in, or becoming employed as an employee or retained as a
consultant, as described in Article IV or otherwise, by a member of the Employer
Group;
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(b) that the Participant shall not employ (including to retain, engage, or
conduct business with) or attempt to employ (other than on behalf of a member of
the Employer Group) or assist anyone else to employ any person who is at the
time of the alleged prohibited conduct, or was at any time during the preceding
year, an employee of a member of the Employer Group;
(c) that the Participant shall not make any oral or written statement to
any person or entity which disparages in a material way the business reputation
of the Company or any member of the Employer Group or the top 50 clients of the
Employer Group; and
(d) that the Participant shall not willfully engage in any activity which
is materially harmful to the interests of the Employer Group.
In the event that the Committee determines that the Participant has
breached any of the provisions of Subsections (a) through (d) above, it shall
give the Participant written notice thereof stating in detail the particular act
or failures that constitute such breach and the specific action that the
Committee requires the Participant to take to cure such alleged breach. Any such
notice must be given within ninety (90) days after the Committee first
determines that such acts or failures constitute a breach. The Committee must
give the Participant a reasonable opportunity to cure in all circumstances in
which it alleges that the Participant has breached any of the provisions of
Subsections (a) through (d) above. The Participant shall have ninety (90) days
after receiving such notice to remedy such breach. The determination of (i)
whether a business is in the top 15 marketing services organizations as reported
in Advertising Age, (ii) whether the Participant employed, attempted to employ
or assisted anyone else to employ any employee of the Employer Group, (iii)
whether the Participant made statements which disparages in a material way, and
(iv) whether the Participant willfully engaged in any activity which is
materially harmful, shall be made by the Committee in good faith after a hearing
at which the Participant shall be entitled to be present with counsel of his
choice and be heard by the Committee, and any such determination by the
Committee shall be final and conclusive.
3.2 Nothing herein prohibits or restricts the Participant from engaging in the
Protected Business in the geographic areas described in Subsection 3.1(a) of the
Plan, employing, attempting to employ or assisting anyone else to employ any
employee of a member of the Employer Group, making disparaging statements, or
willfully engaging in activity which is harmful to the interests of the Employer
Group (collectively "Activities"); provided, however, in the event the
Participant chooses to engage in any of such Activities, the Company's
obligation to make payments hereunder shall forthwith terminate as to payments
which might otherwise have become payable to the Participant in respect of the
calendar year in which such Activity occurred and to the Participant or the
Beneficiary in respect of all calendar years thereafter, but the Participant
shall not be obligated to refund to the Company any payments theretofore paid to
Participant hereunder.
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ARTICLE IV - COMPANY'S PAYMENT OBLIGATION CONDITIONAL ON
PARTICIPANT'S AVAILABILITY FOR ADVISORY AND
CONSULTATIVE SERVICES AFTER SEVERANCE OF EMPLOYMENT
4.1 It is a further condition of the Company's obligation to make payments
hereunder that from the date of the Participant's employment termination
described in Section 6.1 of the Plan that shall have given rise to the
obligation to pay and until the close of the last calendar year in respect of
which the Participant is entitled to receive payments hereunder, that
the Participant, if not physically or mentally disabled, shall, as an
independent contractor and upon not less than thirty (30) days prior written
notice from the Company, make his or her services available to the Company as an
advisor and consultant with respect to activities of the department or unit of
the Company's business to which the Participant was last assigned; provided,
however, that the Participant shall not be obligated to make his or her services
available (i) for more than forty-five (45) business days in the aggregate in
any one calendar year and for more than seven (7) consecutive business days in
any one calendar year, and (ii) during the period from December 15 through
January 15. Such advisory or consulting services shall be rendered at such times
and places as may be mutually convenient to the Chief Executive Officer of the
Company and the Participant. The scheduling of the Participant's advisory and
consulting activities shall take into account his or her other business, family
and civic commitments. The Company shall reimburse the Participant for
reasonable traveling, transportation and living expenses necessarily incurred by
the Participant while away from his or her regular place of residence in the
performance of such advisory and consultative services for the Company.
In the event that the Committee determines that the Participant has
breached any of the provisions of Section 4.1 above, it shall give the
Participant written notice thereof stating in detail the particular act or
failures that constitute such breach and the specific action that the Committee
requires the Participant to take to cure such alleged breach. Any such notice
must be given within ninety (90) days after the Committee first determines that
such acts or failures constitute a breach. The Committee must give the
Participant a reasonable opportunity to cure in all circumstances in which it
alleges that the Participant has breached any of the provisions of Section 4.1
above. The Participant shall have ninety (90) days after receiving such notice
to remedy such breach. The determination of whether the Participant has violated
any provision of Section 4.1 above shall be made by the Committee in good faith
after a hearing at which the Participant shall be entitled to be present with
counsel of his choice and be heard by the Committee, and any such determination
by the Committee shall be final and conclusive.
4.2 In the event the Participant chooses not to render advisory and consultative
services to the Company as provided in Section 4.1 of the Plan, the Company's
obligation to make payments hereunder shall forthwith terminate as to payments
which might otherwise have become payable to the Participant in respect of the
calendar year in which such event occurred and to the Participant or the
Beneficiary in respect of all calendar years thereafter, but the Participant
shall not be obligated to refund to the Company any payments theretofore paid to
Participant hereunder.
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ARTICLE V - PARTICIPATION
5.1 The Committee shall select, in its sole discretion, those Employees who are
eligible to become Participants in the Plan.
5.2 An eligible Employee shall become a Participant in the Plan effective upon
the Employee executing and returning to the Company's Secretary a Senior
Executive Restrictive Covenant and Retention Plan Agreement.
ARTICLE VI - BENEFITS
6.1 Except as otherwise set forth in the Participant's Senior Executive
Restrictive Covenant and Retention Plan Agreement, in the event the
Participant's employment with the Employer Group terminates for any reason after
the Participant has completed seven Years of Service, then the Company, subject
to all the terms and conditions hereof, shall become obligated to pay to the
Participant, or to the Beneficiary if the obligation arises because of the death
of the Participant, each year, for fifteen (15) consecutive calendar years
commencing in the year determined under Section 6.2 of the Plan, an amount equal
to the lesser of (a) the product obtained by multiplying the Participant's Final
Average Pay by the Percentage; or (b) the Annual Cap.
6.2 Except as otherwise set forth in the Participant's Senior Executive
Restrictive Covenant and Retention Plan Agreement, the benefits to be paid under
Section 6.1 of the Plan, if any, shall commence upon the later of (a) the
Participant's attainment of age 55 (subject to Section 6.3 of the Plan), or (b)
the calendar year following the calendar year in which the Participant's
employment is terminated with the Employer Group; provided, however, that the
following exceptions apply:
(i) If the Participant's employment is terminated because of his
or her Disability, then the Participant's benefits shall
commence in the calendar year following the calendar year in
which such termination occurs;
(ii) If the Participant dies prior to receiving the first payment
of his or her benefits, then 100% of the benefits that would
have been paid to the Participant had the Participant lived to
receive all payments shall be paid to the Beneficiary in
annual payments over the total number of calendar years as to
which the Company would have been obligated to make payments
hereunder to the Participant; and
(iii) If the Participant dies after receiving the first payment of
his or her benefits, but before the Participant has received
all of the payments in respect of the total number of calendar
years as to which the Company is obligated to make payments
hereunder ("Payment Period"), the Company shall thereafter be
obligated to make annual payments to the Beneficiary during
the remainder of the Payment Period, equal to 100% of the
amount which the Company would have been obligated to pay to
the Participant had the Participant lived to receive all
payments.
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(iv) Notwithstanding any provision of the Plan to the contrary, if
the Participant is a "specified employee" for purposes of
Section 409A(a)(2)(B)(i) of the Internal Revenue Code, then
any distribution made from the Plan to the Participant shall
not be made prior to the date that is 6 months after the date
that the Participant terminates employment in accordance with
Section 6.1 of the Plan.
6.3 Payments hereunder as a result of the Participant attaining age 55 shall
commence as soon as practicable but no later than ninety (90) days following the
Participant's attainment of age 55 and subsequent payments shall be made in each
calendar year of payment following the Participant's attainment of age 55 during
the first ninety (90) days of the subject calendar year. Except as otherwise
provided herein, all payments under this Article shall be made by the Company in
each calendar year of payment during the first ninety (90) days of the subject
calendar year.
6.4 The Company may, at any time and from time to time, seek to fund, in whole
or in part, its obligation under the Plan by applying for insurance on the life
of a Participant. Such Participant shall, if requested in writing by the
Company, undergo a physical examination for such purpose by medical examiners
designated by the Company, and if the Participant should refuse to undergo such
physical examination the Company shall have the right to terminate its
obligation under the Plan by giving written notice of such termination to the
Participant.
6.5 The amount payable hereunder by the Company in respect of the Payment Period
shall be conditioned on the Participant surrendering any rights he or she has to
receive payments to be made following cessation of Participant's employment to
the Participant, Beneficiary or other designee of the Participant pursuant to
any defined benefit pension plan sponsored by one or more members of the
Employer Group regardless of whether such plan is qualified under Section 401(a)
of the Internal Revenue Code ("Post-Employment Payments"). For purposes hereof,
Post-Employment Payments shall not include any other type of payment including
payments under (i) a profit-sharing or savings plan which is qualified under
Section 401(a) of the Internal Revenue Code, (ii) a benefit plan, other than a
defined benefit pension plan, for the payor's employees generally ("Employee
Benefit Plan"), (iii) a plan, other than a defined benefit pension plan, for the
payor's executive officers approved by the Company that augments a benefit
provided for in an Employee Benefit Plan, (iv) an agreement financed, in whole
or in part, by the Participant to the extent the payments are attributable to
the financing provided by the Participant, and (v) social security benefits.
For purposes of clarifying the provisions of the Plan, including Article VI, the
Participant shall not be deemed an Employee solely by serving as a non-executive
member or Chairman of the Board (or any similar committee of any Employer).
ARTICLE VII - DESIGNATION AND IDENTITY OF BENEFICIARY
7.1 A Participant may designate a Beneficiary by signing, dating and filing with
the Secretary of the Company a written instrument setting forth the name(s) and
address(es) of the Beneficiary, and if the Beneficiary be more than one person
or entity, describing the allocation of the payment benefit among them. A
Participant may change his or her designation of a
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Beneficiary and thereby revoke a prior designation of a Beneficiary at any time
and from time to time by filing a new such written instrument with the
Secretary. The Beneficiary named in the last unrevoked designation of
Beneficiary so filed by the Participant prior to his or her death shall be the
Beneficiary for purposes of the Plan. In the absence of a designation of
Beneficiary by the Participant, or in the event the last written designation of
Beneficiary on file with the Secretary has been revoked by the Participant, the
Beneficiary shall be as described in Section 2.1 of the Plan.
7.2 It is a condition of the Company's obligation to make payments to the
Beneficiary hereunder that (a) in making payments the Company may, in its sole
and absolute discretion, rely upon signed, written declarations, verifying the
identity of a Beneficiary filed with the Secretary of the Company by a person or
entity claiming to be such Beneficiary; (b) any payment made by the Company in
good faith to any claimant, whether or not such declarations shall have been
filed with the Company, shall pro tanto, discharge any obligation the Company
might otherwise have to make payment to any and all other actual or possible
claimants; (c) any person or entity claiming to be entitled to receive payments
hereunder following the death of the Participant shall have recourse only
against the person or entity to whom the Company shall have made payment in good
faith; and (d) in the event the Company, on advice of counsel, delays payment of
any sums becoming due to a Beneficiary by reason of a dispute as to the
legitimacy of the claim of such Beneficiary, no interest, penalty or damage
shall accrue, become payable by or be assessed against the Company by reason of
such delay in payment.
ARTICLE VIII - ADMINISTRATION
8.1 The Plan shall be administered by the Committee. A majority vote of the
Committee members shall control any decision of the Committee. The Committee
shall have all powers necessary to administer the Plan, including the power to:
(a) make and enforce such rules and regulations as it deems necessary or
proper for the administration of the Plan;
(b) interpret the Plan, decide all questions concerning the Plan (whether
of fact or otherwise) and determine the eligibility of any person to receive
payments hereunder, each in its sole discretion; any such interpretation or
determination to be reviewed under an abuse of discretion standard;
(c) appoint such agents, counsel, accountants, consultants, and other
persons as may be required to assist in administering the Plan; and
(d) allocate and delegate its responsibilities under the Plan and to
designate other persons to carry out any of its responsibilities under the Plan,
any such allocation, delegation or designation to be in writing.
8.2 The decision or action of the Committee with respect to any question arising
out of or in connection with the administration, interpretation and application
of the Plan and the rules and regulations promulgated hereunder shall be final,
conclusive and binding upon all persons having any interest in the Plan.
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8.3 The Company shall indemnify and hold harmless the members of the Committee
and the Board, and any of its delegates, against any and all claims, loss,
damage, expense or liability arising from any action or failure to act with
respect to this Plan on account of such member's service on the Committee or the
Board, or the service of such delegate, except where (i) his or her acts were
committed in bad faith or were the result of his or her active and deliberate
dishonesty and were material to such action; or (ii) he or she personally gained
in fact a financial profit or other advantage to which he or she was not legally
entitled.
ARTICLE IX - CLAIMS PROCEDURE
9.1 If a Participant or Beneficiary ("Claimant") does not receive a benefit to
which the Claimant believes he or she is entitled, the Claimant may file a
written claim with the Committee. The Claimant's claim will be processed by the
Committee within ninety (90) days (in special circumstances, this period may be
extended for an additional ninety (90) days by written notice to the Claimant).
If the Claimant's claim is denied, he or she will be notified in writing, and
such notification will include the reasons for the denial, specific references
to pertinent Plan provisions, a description of any additional material or
information necessary for the Claimant to perfect the claim, together with an
explanation of why the material or information is necessary, and a description
of the Plan's claim review procedure, described below, including a statement of
the Claimant's right to bring a civil action under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") Section 502(a) following an
adverse benefit determination on review.
9.2 If the Claimant is dissatisfied with the Committee's determination, the
Claimant may request, in writing, a review by the Board of the Committee's
determination. The Claimant also has the right to review and obtain copies of
relevant documents and to submit issues and comments in writing. The Claimant
must request a claim review not later than sixty (60) days after the date the
Claimant receives the Committee's notification. The Board's review shall take
into account all comments, documents, records, and other information submitted
by the Claimant related to the claim, without regard to whether such information
was submitted or considered by the Committee.
9.3 Within sixty (60) days of receipt of a request for review of the disputed
claim (in special circumstances, 120 days, by written notice to the Claimant),
the Board will review the claim and advise the Claimant, in writing, of its
determination. The writing will include the reasons for the Board's decision,
specific references to pertinent Plan provisions, a statement that the Claimant
is entitled to receive reasonable access to and copies of all documents, records
and other information relevant to the claim, and a statement of the Claimant's
right to bring a civil action under ERISA Section 502(a). The Board's decision
shall be final and conclusive.
ARTICLE X - TERMINATION, SUSPENSION OR AMENDMENT
10.1 The Committee may, in its sole discretion, terminate or suspend the Plan at
any time, in whole or in part. The Committee may, in its sole discretion, amend
the Plan or a Participant's Senior Executive Restrictive Covenant and Retention
Plan Agreement at any time, and from time to time, for any reason. Any
amendment, termination or suspension shall be in writing. Except as provided in
Section 1.3 of the Plan, no amendment, termination, or suspension may adversely
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affect the benefits or rights of a Participant arising under the terms of the
Plan or a Senior Executive Restrictive Covenant and Retention Plan Agreement in
a material manner without the consent of such Participant.
ARTICLE XI - MISCELLANEOUS
11.1 This Plan is an unfunded plan maintained primarily to provide deferred
compensation benefits for a select group of management or highly-compensated
employees within the meaning of Sections 201, 301, and 401 of ERISA, and
therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.
11.2 With respect to rights and benefits derived from the existence of the Plan,
Participants shall be unsecured general creditors of the Company, with no
secured or preferential right to any assets of the Company or any other party
for payment of benefits under this Plan. Any property held by the Company for
the purpose of generating the cash flow for benefit payments shall remain its
general, unpledged and unrestricted assets.
11.3 The Company shall be responsible for the payment of all benefits provided
under the Plan. At its discretion, the Company may establish one or more trusts,
with such trustees as the Board may approve, for the purpose of providing for
the payment of such benefits. Although such a trust shall be irrevocable, its
assets shall be held for payment of all the Company's general creditors in the
event of insolvency. To the extent any benefits provided under the Plan are paid
from any such trust, the Company shall have no further obligation to pay them.
If not paid from the trust, such benefits shall remain the obligation of the
Company.
11.4 The Company shall withhold from payments hereunder any taxes required to be
withheld from such payments under applicable local, state or federal law. 11.5
The right of a Participant or Beneficiary to receive payments hereunder is
personal, non-assignable and non-transferable by operation of law or otherwise.
The word "otherwise" in the preceding sentence shall include, without
limitation, any execution, levy, garnishment, attachment or seizure by any other
legal process. If at the time the Company is to make a payment to a Participant
or Beneficiary hereunder the Participant or Beneficiary is not entitled to
receive such payment by reason of non-compliance with the provisions of this
Section 11.5, the obligation of the Company to make such payment shall forthwith
terminate.
11.6 Any payment to be made by the Company to a person under the age of 21 years
may be made to such person or to a guardian of the property of such person or to
a parent of such person as the Company may, in its sole and absolute discretion,
determine. The Company may delay such payment until the Company has received
notice of the appointment and qualification of a guardian of the property of
such person, and no interest, penalty or damage shall accrue, become payable by
or be assessed against the Company by reason of such delay in payment.
11.7 Nothing herein contained shall be deemed to give the Participant the right
to remain in the employ of the Employer or to interfere with the right of the
Employer to terminate the Participant's employment at any time, nor to give the
Employer the right to require the Participant to remain in its employ or to
interfere with the Participant's right to terminate employment at any time.
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11.8 Except as preempted by ERISA, the provisions of this Plan shall be
construed and interpreted in accordance with the laws of the State of New York,
and is subject to all applicable federal, state and municipal laws and
regulations now or hereafter in force.
11.9 If any provision of this Plan shall be held illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, and this Plan shall be construed and enforced as if such illegal and
invalid provision had never been inserted herein.
11.10 The failure of any party to insist upon strict adherence to any term of
the Plan on any occasion shall not be considered a waiver of any right
hereunder, nor shall it deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of the Plan.
11.11 The provisions of this Plan shall bind and inure to the benefit of the
Company and its successors and assigns, and to the Participants and their
representatives, heirs and estate. The term successors as used herein shall
include any corporate or other business entity which shall, whether by merger,
consolidation, purchase or otherwise acquire all or substantially all of the
business and assets of the Company, and successors of any such corporation or
other business entity.
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