EMPLOYMENT AGREEMENT
OGDEN ENERGY GROUP, INC. (the "Company") and Paul Clements ("Executive") agree
to enter into this EMPLOYMENT AGREEMENT dated as of May 1, 1999, as follows:
1. Employment.
This Agreement constitutes the complete understanding between the parties with
respect to the subject matter hereof and no statement, representation, warranty
or covenant has been made by either party with respect thereto except as
expressly set forth herein. From the date hereof, this Agreement supersedes in
all respects all previous agreements in regard to employment between the
Executive and the Company, and Executive shall have no rights under such
agreements all of which merged herein and are governed hereby.
The Company hereby agrees to employ Executive, and Executive hereby agrees to be
employed by the Company, upon the terms and subject to the conditions set forth
in this Agreement.
2. Employment Term.
The period of Executive's employment under this Agreement shall be for a period
of five years commencing as of May 1, 1999 (the "Effective Date") and continuing
until May 1, 2004 and thereafter from year to year until terminated in
accordance with Section 5 below (the "Employment Term").
3. Duties and Responsibilities.
(a) The Company will employ Executive as its Executive Vice President for
Energy Operations. In such capacity, Executive shall perform the
customary duties and have the customary responsibilities of such
position and such other duties as may be assigned to Executive from
time to time by the Company or by the Company's Board of Directors (the
"Board").
(b) Executive agrees to faithfully serve the Company, devote his full
working time, attention and energies to the business of the Company its
subsidiaries and affiliated entities, and perform the duties under this
Agreement to the best of his abilities. Executive may perform services
without direct compensation therefor in connection with the management
of personal investments, or in connection with charitable or civic
organizations. The Executive shall be excused from rendering his
service during reasonable vacation periods and during other reasonable
temporary absences as may be authorized by the Board.
(c) Executive agrees (i) to comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) to comply with the
Company's Policy of Business Conduct; and (iii) not to engage in any
other business or employment without the written consent of the Company
except as otherwise specifically provided herein.
4. Compensation and Benefits.
(a) Base Salary. During the Employment Term, the Company shall pay
Executive a base salary at the annual rate of $220,000 per year or such
higher rate as may be determined from time to time by the Board ("Base
Salary"). Such Base Salary shall be paid in accordance with the
Company's standard payroll practice for senior executives.
(b) Annual Incentive Bonus. During the Employment Term, the Executive will
be eligible for an annual incentive bonus in such amount as may be
determined by the Board.
(c) Expense Reimbursement. The Company shall promptly reimburse Executive
for the ordinary and necessary business expenses incurred by Executive
in the performance of the duties under this Agreement in accordance
with the Company's customary practices applicable to senior executives,
provided that such expenses are incurred and accounted for in
accordance with the Company's policy.
(d) Other Benefit Plans, Fringe Benefits and Vacations. Executive shall be
eligible to participate in or receive benefits under any pension plan,
profit sharing plan, 401(k) plan, non-qualified deferred compensation
plan, medical and dental benefits plan, life insurance plan, short-term
and long-term disability plans, incentive compensation plans,
vacations, or any other fringe benefit plan, generally made available
by the Company to senior executives. Except as otherwise provided in
this Agreement, any such participation shall be in accordance with the
provisions of such plans and nothing contained in this Agreement is
intended to, or shall be deemed to, affect adversely any of Executive's
rights as a participant under any such plans. Nothing herein shall
prevent the Board from modifying or discontinuing any benefit plan on a
consistent and non-discriminatory basis applicable to all such
executives.
5. Termination of Employment.
Executive's employment under this Agreement may be terminated under the
following circumstances:
(a) Death. Executive's employment shall terminate upon Executive's death.
(b) Total Disability. The Company may terminate Executive's employment upon
his becoming "Totally Disabled". For purposes of this Agreement,
Executive shall be "Totally Disabled" if he is physically or mentally
incapacitated so as to render him incapable of performing his usual and
customary duties under this Agreement. Executive's receipt of
disability benefits under the Company's long-term disability plan or
receipt of Social Security disability benefits shall be deemed
conclusive evidence of Total Disability for purpose of this Agreement.
(c) Termination by the Company for Cause. The Company may terminate
Executive's employment for "Cause". Such termination shall be effective
as of the date specified in the written Notice of Termination provided
to Executive.
Termination of employment by the Company for Cause shall be
deemed to have occurred only if such termination directly
results from: (A) an act or acts of dishonesty on Executive's
part constituting a felony; (B) Executive's willful and
continued failure to devote the time, attention, and effort
necessary to substantially perform his duties as an executive
officer of the Company in a manner consistent with Executive's
past performance (other than any such failure resulting from
Executive's incapacity due to physical or mental illness or
total disability), after a demand for substantial performance
is delivered to Executive by the Board which specifically
identifies the manner in which the Board believes that
Executive has not substantially performed his duties and
Executive is given a reasonable time after such demand
substantially to perform his duties; (C) gross misconduct or
gross negligence in connection with the business of the
Company or an affiliate which has a material adverse effect on
the Company and its subsidiaries, taken as a whole; or (D) a
material breach of any of the covenants set forth in Section 7
hereof.
(d) Termination by the Company without Cause. The Company may terminate
Executive's employment under this Agreement without Cause thirty (30)
days after providing Notice of Termination to Executive.
(e) Termination by Executive. Executive may terminate his employment under
this Agreement at any time after providing Notice of Termination to the
Company. Such Notice shall state whether the Executive's termination is
for "Good Reason". Termination of employment by Executive for Good
Reason shall be deemed to have occurred, if Executive provides the
Notice of Termination within 60 days (180 days after the event listed
in (v) below) after the occurrence of any of the following:
(i) A change in Executive's responsibilities, status, title, or
position, which, in Executive's reasonable judgment,
represents a diminution of Executive's responsibilities,
status, title, or position, or any removal of Executive from,
or any failure to re-elect Executive to, any of such titles,
offices, or positions, provided that this clause shall not
apply if Executive's employment is terminated as a result of:
(A) Executive's death, (B) Executive's Total Disability in
accordance with Section 5(b), (C) Cause in accordance with
Section 5(c), or (D) Executive's voluntary termination in
accordance with this Section 5(e) other than for Good Reason.
(ii) A reduction by the Company in Executive's Base Salary.
(iii) The failure by the Company to pay any material amount of
current compensation owing to Executive, or any material
amount of compensation deferred under any plan, agreement or
arrangement of or with the Company owing to Executive, within
20 days after the Executive makes written demand for such
amount.
(iv) The failure by the Company to obtain an assumption (in form
and substance reasonably satisfactory to the Executive, except
in the case of a merger or consolidation which does not
constitute a Change in Control for which no separate
assumption is necessary) of the obligations of the Company
under this Agreement by any successor to the Company.
(v) Any "Change in Control" as defined in Appendix A to this
Agreement.
(f) Notice of Termination. Any termination of Executive's employment by the
Company or by Executive (other than by reason of Executive's death)
shall be communicated by written Notice of Termination to the other
party in accordance with Section 15 below. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice in writing
which shall indicate the specific termination provision in this
Agreement relied upon to terminate Executive's employment and shall set
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the
provision so indicated.
(g) Termination Date. Termination Date means (i) if Executive's employment
is terminated because of his death, the date of death, or (ii) if
employment is terminated for any other reason, the date specified in
the Notice of Termination.
6. Compensation Following Termination of Employment.
(a) Termination by Reason of Death. In the event that Executive's
employment is terminated by reason of Executive's death, the Company
shall pay the following amounts to Executive's beneficiary or estate:
(i) Earned But Unpaid Compensation. Any accrued but unpaid
Base Salary for services rendered to the date of death, any
accrued but unpaid expenses required to be reimbursed under
this Agreement and any vacation accrued to the date of death.
(ii) Lump Sum Payment. An amount equal to the Base Salary (at
the rate in effect as of the date of Executive's death) which
would have been payable to Executive if Executive had
continued in employment until the last day of the month in
which Executive's death occurs. Such amount shall be paid in a
single lump sum cash payment within 30 days after Executive's
death.
(iii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(d) hereof as determined and paid in
accordance with the terms of such plans, policies and
arrangements.
(b) Termination by Reason of Total Disability. In the event that
Executive's employment is terminated by reason of Executive's Total
Disability prior to the last day of the Employment Term as determined
in accordance with Section 5(b), the Company shall pay the following
amounts to Executive:
(i) Earned But Unpaid Compensation. Any accrued but unpaid
Base Salary for services rendered to Executive's Termination
Date, any accrued but unpaid expenses required to be
reimbursed under this Agreement, any vacation accrued to the
Termination Date.
(ii) Continuation of Base Salary. An amount equal to (A) the
Base Salary (at the rate in effect as of the date of
Executive's Total Disability) which would have been payable to
Executive if Executive had continued in active employment
until the end of the 12-month period following Executive's
Termination Date, or such longer period as may be determined
by the Board, (B) reduced by amount of disability insurance
benefits payable to Executive during such period under any
employer-paid disability insurance plan. Payment shall be made
at the same time and in the same manner as such compensation
would have been paid if Executive had remained in active
employment until the end of such period.
(iii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(d) hereof shall be determined and
paid in accordance with the terms of such plans, policies and
arrangements.
(c) Termination for Cause or Termination By Executive for Other Than Good
Reason. In the event that Executive's employment is terminated by the
Company for Cause pursuant to Section 5(c), or by Executive pursuant to
Section 5(e) for other than Good Reason, the Company shall pay the
following amounts to Executive:
(i) Earned But Unpaid Compensation. Any accrued but unpaid
Base Salary for services rendered to Executive's Termination
Date, any accrued but unpaid expenses required to be
reimbursed under this Agreement and any vacation accrued to
Executive's Termination Date.
(ii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(d) hereof shall be determined and
paid in accordance with the terms of such plans, policies and
arrangements.
(d) Termination By the Company Without Cause or Termination by Executive
for Good Reason. Executive shall be entitled to the benefits described
in this Section 6(d) in the event that Executive's employment is
terminated (i) by the Company pursuant to Section 5(d) for reasons
other than death, Total Disability, or Cause, or (ii) by Executive for
Good Reason pursuant to Section 5(e).
(i) Earned But Unpaid Compensation. The Company shall pay
Executive any accrued but unpaid Base Salary for services
rendered to Executive's Termination Date, any accrued but
unpaid expenses required to be reimbursed under this Agreement
and any vacation accrued to Executive's Termination Date.
(ii) Lump Sum Payment. The Company shall pay Executive an
amount equal to the product of five times the sum of (A) and
(B) below:
(A) Executive's annualized Base Salary at
the highest annual rate in effect at any time prior
to the Termination Date; and
(B) the highest amount of annual bonus
payable to Executive at any time prior to the
Executive's Termination Date.
This amount will be paid to Executive in a single lump sum
within 30 business days after the Termination Date.
(iii) Other Benefits. Any benefits to which Executive may be
entitled pursuant to the plans, policies and arrangements
referred to in Section 4(d) hereof shall be determined and
paid in accordance with the terms of such plans, policies and
arrangements.
(iv) No Mitigation Required. Executive shall not be required
to mitigate the amount of any compensation provided for under
this Section 6(d) by seeking other employment or otherwise,
nor shall the amount of any payment provided for under this
Agreement be reduced by any compensation earned by the
Employee as the result of employment with another employer
after the Termination Date or by any other compensation.
(v) Non-Competition Covenant Does Not Apply. The restrictive
covenant prohibiting competitive activity set forth in Section
7(b) below shall not be applicable to Executive and shall be
null and void.
(e) No Other Benefits or Compensation. Except as may be provided under this
Agreement, under the terms of any incentive compensation, employee
benefit, or fringe benefit plan, applicable to Executive at the time of
Executive's termination or resignation of employment, Executive shall
have no right to receive any other compensation, or to participate in
any other plan, arrangement or benefit, with respect to future periods
after such termination or resignation.
7. Restrictive Covenants.
(a) Protected Information. Executive recognizes and acknowledges that he
will have access to various confidential or proprietary information
concerning the Company and entities affiliated with the Company of a
special and unique value which may include, without limitation, (i)
books and records relating to operations, finance, accounting, sales,
personnel and management, (ii) policies and matters relating
particularly to operations such as customer service requirements, costs
of providing service and equipment, operating costs and pricing
matters, and (iii) various trade or business secrets, including
business opportunities, marketing or business diversification plans,
business development and bidding techniques, methods and processes,
financial data and the like (collectively, the "Protected
Information"). Executive therefore covenants and agrees that he will
not at any time, either while employed by the Company or afterwards,
knowingly make any independent use of, or knowingly disclose to any
other person or organization (except as authorized by the Company) any
of the Protected Information.
(b) Competitive Activity. Executive covenants and agrees that at all times
during his period of employment with the Company, and for a period of
two (2) years after the date of termination of his employment by reason
of (i) termination by the Company for Cause in accordance with Section
5(c) above, or (ii) termination by the Executive in accordance with
Section 5(e) above for other than Good Reason, he will not, directly or
indirectly, engage in, assist, or have any active interest or
involvement whether as an employee, agent, consultant, creditor,
advisor, officer, director, stockholder (excluding holding of less than
1% of the stock of a public company), partner, proprietor or any type
of principal whatsoever, in any person, firm, or business entity which
is engaged in the same business as that conducted and principally
carried on by the Company on the date of Termination and continued
thereafter, without the Company's specific written consent to do so.
(c) Return of Documents and Other Materials. Executive shall promptly
deliver to the Company, upon termination of his employment, or at any
other time as the Company may so request, all customer lists, leads and
refunds, data processing programs and documentation, blueprints,
programs, and any other documents and other materials (and all copies
thereof) relating to the Company's business or that of its customers,
and all property associated therewith, which Executive may then possess
or have under his control.
8. Enforcement of Covenants.
(a) Right to Injunction. Executive acknowledges that a breach of the
covenants set forth in Section 7 hereof will cause irreparable damage
to the Company with respect to which the Company's remedy at law for
damages will be inadequate. Therefore, in the event of breach or
anticipatory breach of the covenants set forth in this section by
Executive, Executive and the Company agree that the Company shall be
entitled to the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity, injunctions, both
preliminary and permanent, enjoining or retraining such breach or
anticipatory breach and Executive hereby consents to the issuance
thereof forthwith and without bond by any court of competent
jurisdiction.
(b) Separability of Covenants. The covenants contained in Section 7 hereof
constitute a series of separate covenants, one for each applicable
State in the United States and the District of Columbia, and one for
each applicable foreign country. If in any judicial proceeding, a court
shall hold that any of the covenants set forth in Section 7 exceed the
time, geographic, or occupational limitations permitted by applicable
laws, Executive and the Company agree that such provisions shall and
are hereby reformed to the maximum time, geographic, or occupational
limitations permitted by such laws. Further, in the event a court shall
hold unenforceable any of the separate covenants deemed included
herein, then such unenforceable covenant or covenants shall be deemed
eliminated from the provisions of this Agreement for the purpose of
such proceeding to the extent necessary to permit the remaining
separate covenants to be enforced in such proceeding. Executive and the
Company further agree that the covenants in Section 7 shall each be
construed as a separate agreement independent of any other provisions
of this Agreement, and the existence of any claim or cause of action by
Executive against the Company whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of any of the covenants of Section 7.
9. Certain Proprietary Rights.
Executive agrees to and hereby does assign to the Company all his right, title
and interest in and to all inventions, whether or not patentable, which are made
or conceived solely or jointly by him:
(a) at any time during the term of his employment by the Company in an
executive, managerial, or planning capacity (including development and
sales); or
(b) during the course of or in connection with his duties during the
Employment Term; or
(c) with the use of time or materials of the Company.
Executive agrees to communicate to the Company or its representatives all facts
known to him concerning such inventions, to sign all rightful papers, make all
rightful oaths and generally to do everything possible to aid the Company in
obtaining and enforcing proper patent protection for all such inventions in all
countries and in vesting title to such inventions in all countries and in
vesting title to such inventions and patents in the Company. For the purpose of
this Agreement, the subject matter of employment or within one year subsequent
to the termination thereof shall be deemed to be an invention made or conceived
by him during the course of his employment by the Company and assignable to the
Company hereunder, unless Executive establishes by a preponderance of the
evidence that such invention was made or conceived by him subsequent to
termination of his employment hereunder. At the Company's request (during or
after the term of this Agreement) and expense, Executive will promptly execute a
specific assignment of title to the Company, and perform any other acts
reasonably necessary to implement the foregoing assignment.
10. Withholding of Taxes.
The Company shall withhold from any compensation and benefits payable under this
Agreement all required federal, state, local, or other taxes.
11. Source of Payments.
All payments provided under this Agreement, other than payments made pursuant to
a plan which provides otherwise, shall be paid from the general funds of the
Company, and no special or separate fund shall be established, and no other
segregation of assets made, to assure payment. Executive shall have no right,
title or interest whatever in or to any investments which the Company may make
to aid the Company in meeting its obligations under this Agreement. To the
extent that any person acquires a right to receive payments from the Company
under this Agreement, such right shall be no greater than the right of an
unsecured creditor of the Company and its affiliates.
12. Successor and Binding Agreement.
(a) Company Successor. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company, by
agreement in form and substance satisfactory to Executive, expressly to
assume and agree to perform this Agreement in the same manner and to
the same extent as the Company would be required to perform it if no
such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a
breach of this Agreement and shall entitle Executive to compensation
from the Company in the same amount and on the same terms as Executive
would be entitled to under this Agreement if Executive had given Notice
of Termination for Good Reason as of the day immediately before such
succession became effective and had specified that day in the notice of
termination. As used in this Agreement, "Company" shall mean the
Company as defined in the first sentence of this Agreement and any
successor to all or substantially all its business or assets or which
otherwise becomes bound by all the terms and provisions of this
Agreement, whether by the terms hereof, by operation of law or
otherwise.
(b) Executive's Successor. This Agreement shall inure to the benefit of and
be enforceable by Executive and his personal or legal representatives
and permitted successors in interest under this Agreement.
(c) Facility of Payment. In the event of Executive's legal incapacity, the
Company may make any payments due under this Agreement to his legal
representative. In the event of Executive's death, the Company may make
any payment due under this Agreement to his named beneficiaries or, if
none, to Executive's estate. Any payment made in accordance with this
provision fully discharges the obligation of the Company therefor.
13. Assignment by Executive.
The rights and benefits of Executive under this Agreement are personal to him
and no such right or benefit shall be subject to voluntary or involuntary
alienation, assignment or transfer; provided, however, that nothing in this
Section 13 shall preclude Executive from designating a beneficiary or
beneficiaries to receive any benefit payable following his incapacity or death.
In the event of a dispute arising under this Agreement, the Company agrees to
pay any and all reasonable legal fees incurred by Executive in connection
therewith.
14. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
15. Notices.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To the Company:
Ogden Energy Group, Inc.
40 Lane Road
P.O. Box 2615
Fairfield, New Jersey 07007-2615
Attention: President
To Executive:
Paul Clements
9732 Rolling Ridge Drive
Fairfax Station, VA 22039
16. Miscellaneous.
(a) Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(b) Separability. If any term or provision of this Agreement is declared
illegal or unenforceable by any court of competent jurisdiction and
cannot be modified to be enforceable, such term or provision shall
immediately become null and void, leaving the remainder of this
Agreement in full force and effect.
(c) Headings. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this
Agreement.
(d) Rules of Construction. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, and such counterparts will together constitute but one
Agreement.
(f) Definition of Change in Control. At any time commencing on the date
which is 30 days after the effective date of the disposition by Ogden
Corporation of its aviation and entertainment businesses and continuing
for a period of 30 days thereafter, the Company, acting through its
Board of Directors, may propose to Executive in writing a revision of
this Agreement relating only to the definition of Change-in-Control and
the terms under which a Change-in-Control triggers the Executive's
rights to terminate for Good Reason. The Executive and the Company
shall thereafter negotiate in good faith regarding such proposal. If
the Executive and the Company shall fail to reach agreement regarding
this proposal within 30 days of the date the proposal is received by
Executive, then this Agreement shall be deemed to be amended to delete
clause (v) of Section 5(e) and as amended this Agreement shall remain
in full force and effect. Notwithstanding the foregoing, if at any time
between the date of this Agreement and the earlier of the date
Executive and the Company reach agreement on any proposal by the
Company, or the period for negotiation of such proposal expires, there
occurs a Change-in-Control, or there is an announcement of a proposed
Change-in-Control (in each case, as defined without regard to the
Company's proposal), the Company's rights under this section shall
immediately terminate.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year set forth below.
OGDEN ENERGY GROUP, INC. EXECUTIVE
By By
------------------------------ ------------------------------
Scott G. Mackin, Paul Clements
President and Chief Operating
Officer
Date: ,1999 Date: ,1999
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APPENDIX A
DEFINITION OF CHANGE IN CONTROL
The following definition of "Change in Control" shall apply for purposes of
Paragraph 5(e)(v) of the Employment Agreement between Ogden Energy Group, Inc.
and Paul Clements.
Change in Control. A "Change in Control" of the Company shall be deemed to have
occurred as of the first day any one or more of the following conditions shall
have been satisfied:
(a) For purposes of this agreement, a "change in control" shall mean: the
acquisition by any person or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of 25% or more of either (i) the
then outstanding shares of common stock of Parent (as defined in (d)
below) or (ii) the combined voting power of the then outstanding voting
securities of Parent entitled to vote generally in the election of
directors, provided that the following acquisitions shall not
constitute a Change in Control: (i) any acquisition directly from
Parent (excluding any acquisition by virtue of the exercise of a
conversion privilege), (ii) any acquisition by Parent; (iii) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by Parent, or any corporation controlled by Parent, or
(iv) any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if following such reorganization, merger or
consolidation the conditions described in clause (iii) of paragraph (c)
below are met.
(b) Individuals who, as of May 20, 1998, constitute the Board of Directors
of the Parent (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 May 20, 1998, whose
election, or nomination for election by the Parent 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) The stockholders of the Parent approve: (i) a plan of complete
liquidation of the Parent; or (ii) an agreement for the sale or
disposition of all or substantially all the Parent's assets; or (iii) a
merger, consolidation, or reorganization of the Parent with or
involving any other corporation, limited liability entity or similar
person, other than a merger, consolidation, or reorganization that
would result in the voting securities of the Parent outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) at least seventy-five percent (75%) of the combined
voting power of the voting securities of the Parent (or such surviving
entity) outstanding immediately after such merger, consolidation, or
reorganization.
(d) As used herein, Parent means Ogden Corporation and any successor to all
or substantially all of its business or assets, provided that following
a disposition by Ogden Corporation of all or substantially all of the
stock, business or assets of Ogden Energy Group, Inc., Parent shall
mean Ogden Energy Group, Inc. or any company which controls, directly
or indirectly a majority of the voting power of Ogden Energy Group,
Inc.'s then outstanding voting securities.