EXHIBIT 23.4
THE CENTURY BANCORP
SUPPLEMENTAL EXECUTIVE RETIREMENT
AND INSURANCE PLAN
AS AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 2002
TABLE OF CONTENTS
Page
PREAMBLE
ARTICLE I CONSTRUCTION OF THE PLAN 1
1.1 Definitions
(a) Accrual Percentage 1
(b) Actuarial Equivalent 2
(c) Actuary 2
(d) Average Compensation 2
(e) Beneficiary 2
(f) Benefit Percentage 2
(g) Board of Directors 3
(h) Change of Control 3
(i) Code 4
(j) Committee 4
(k) Compensation 4
(l) Director 4
(m) Early Retirement Age 4
(n) Early Retirement Date 4
(o) Effective Date 4
(p) Employee 4
(q) Employer 4
(r) ERISA 4
(s) Executive Management Group 4
(t) Normal Retirement Date 4
(u) Participant 4
(v) Pension Trust Offset 5
(w) Pension Trust 5
(x) Plan Year 5
(y) Postponed Retirement Date 5
(z) Senior Management Group 5
(aa) Social Security Benefit 5
(bb) Years of Plan Participation 5
1.2 Construction 5
ARTICLE II PARTICIPATION 6
ARTICLE III ELIGIBILITY FOR BENEFITS 7
3.1 Normal Retirement 7
3.2 Early Retirement 7
3.3 Deferred Vested Retirement 7
ARTICLE IV SUPPLEMENTAL RETIREMENT BENEFITS 8
4.1 Normal or Postponed Retirement
Benefits 8
4.2 Early Retirement Benefits 8
4.3 Deferred Vested Retirement Benefits 9
ARTICLE V PAYMENT OF BENEFITS 10
5.1 Normal Form of Payment 10
5.2 Optional Forms of Payment 10
5.3 Frequency of Payment 11
5.4 Nature of Claim for Payments 11
ARTICLE VI INSURANCE BENEFITS 12
6.1 Amount of Insurance 12
6.2 Termination of Employment 12
6.3 Beneficiaries 12
6.4 Taxation 13
6.5 Procedures 13
ARTICLE VII PLAN ADMINISTRATION 14
7.1 Plan Administrator 14
7.2 Composition of the Committee 14
7.3 Powers and Duties of Committee 14
ARTICLE VIII MISCELLANEOUS PROVISIONS 15
8.1 No Contract of Employment 15
8.2 Assignment 15
8.3 Forfeiture in the Event of
Discharge for Cause 15
8.4 Amendment 15
Schedule A Change of Control Definition 17
THE CENTURY BANCORP
SUPPLEMENTAL EXECUTIVE RETIREMENT
AND INSURANCE PLAN
PREAMBLE
Century Bancorp, Inc. has adopted this Plan for a select group of
management Employees in order to (a) attract, retain and motivate qualified
management Employees, (b) facilitate the retirement of such Employees, and (c)
in certain cases, provide survivor income for the Beneficiaries of such
Employees. The Plan is intended to be "a plan which is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees"
within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA, and
shall be interpreted and administered to the extent possible in a manner
consistent with that intent.
This Plan amends and restates, effective January 1, 2000, The Century
Bancorp, Inc. Supplemental Executive Retirement/Insurance Plan. This Plan was
previously amended effective January 1, 1984 and January 1, 1989.
ARTICLE I
CONSTRUCTION OF THE PLAN
1.1 DEFINITIONS
Whenever used in this Plan with initial capital letters, the following
terms shall have the following meanings:
(a) "ACCRUAL PERCENTAGE" means:
(i) in the case of a Participant whose employment with
the Employer terminates before attaining age forty
(40), 0%; or
(ii) in the case of a Participant whose employment with
the Employer terminates after attaining age forty
(40), the percentage from the following tables:
1
For employees who became Participants before January 1, 2000 the
following table will apply:
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Years of Plan Participation Accrual Percentage
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Fewer than 5 0.0%
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5 but less than 6 25.0
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6 but less than 7 32.5
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7 but less than 8 40.0
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8 but less than 9 47.5
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9 but less than 10 55.0
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10 but less than 11 62.5
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11 but less than 12 70.0
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12 but less than 13 77.5
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13 but less than 14 85.0
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14 but less than 15 92.5
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15 or more 100.0
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For employees who became Participants after December 31, 1999 the following
table shall apply:
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Years of Plan Participation Accrual Percentage
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Fewer than 5 0%
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5 but less than 6 20
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6 but less than 7 24
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7 but less than 8 28
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8 but less than 9 32
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9 but less than 10 36
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10 but less than 11 40
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11 but less than 12 44
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12 but less than 13 48
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2
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13 but less than 14 52
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14 but less than 15 56
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15 but less than 16 60
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16 but less than 17 64
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17 but less than 18 68
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18 but less than 19 72
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19 but less than 20 76
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20 but less than 21 80
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21 but less than 22 84
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22 but less than 23 88
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23 but less than 24 92
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24 but less than 25 96
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25 or more 100
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Notwithstanding the above, upon a Change of Control the Accrual
Percentage of a Participant who is employed by the Employer on the date
of such Change will be 100%.
(b) "ACTUARIAL EQUIVALENT" means a benefit of equal present value
to the benefit which otherwise would have been provided to the
Participant, computed on the basis of mortality according to
the 1984 Unisex Pension Mortality Table and an interest rate
of 7.5% compounded annually.
(c) "ACTUARY" means the enrolled actuary selected by the Board.
(d) "AVERAGE COMPENSATION" means the Compensation of a Participant
averaged over the thirty-six (36) consecutive calendar months
within the last one hundred twenty (120) calendar months as an
Employee which produces the highest average.
(e) "BENEFICIARY" means a person entitled to benefits under the
provisions of the Plan, other than the Participant.
(f) "BENEFIT PERCENTAGE" means, for employees who became
Participants before January 1, 2000; 75% for a member of the
Executive Management Group or 66% for all for members of the
Senior Management Group; and 66% for all employees who become
Participants after December 31, 1999.
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(g) "BOARD OF DIRECTORS" means the Board of Directors of the
Employer.
(h) "CHANGE OF CONTROL" shall mean the occurrence of any one of
the events defined in Schedule A.
(i) "CODE" means the Internal Revenue Code of 1986, as amended.
(j) "COMMITTEE" means the Plan Committee described in Article VII.
(k) "COMPENSATION" means the total W-2 earnings paid by the
Employer to the Employee during a Plan Year, increased by the
amount of any salary reduction contribution on behalf of the
Employee by the Employer to a 401(k) plan maintained by the
Employer or to any cafeteria plan maintained by the Employer
pursuant to Section 125 of the Code.
(l) "DIRECTOR" means a member of the Board of Directors.
(m) "EARLY RETIREMENT AGE" means the first day of the month after
a Participant has attained age fifty-five (55) and completed
five (5) or more years of participation.
(n) "EARLY RETIREMENT DATE" means a Participant's date of
termination after attaining his Early Retirement Age, but
prior to his Normal Retirement Date.
(o) "EFFECTIVE DATE" means January 1, 1984.
(p) "EMPLOYEE" means any person who is hired by the Employer.
(q) "EMPLOYER" means Century Bancorp, Inc., Century Bank & Trust
Co., Century North Shore Bank & Trust Company, and the Bank of
Massachusetts, all corporations organized and existing under
laws of the Commonwealth of Massachusetts or its successor or
successors.
(r) "ERISA" means the Employee Retirement Income Security Act of
1974.
(s) "NORMAL RETIREMENT DATE" means the first day of the month
coincident with or next following the Participant's 65th
birthday.
(t) "PARTICIPANT" means any eligible Employee of the Employer who
has satisfied the requirements in Section 2.1.
(u) "PENSION TRUST OFFSET" means the monthly retirement benefit
that would be payable
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to the Participant under the Pension Trust beginning on his
Normal Retirement Date or Postponed Retirement Date, if
applicable, (both as defined in this Plan), under the 120
month term certain annuity form of payment under the Pension
Trust.
In the event that payments under the Pension Trust actually
begin on a date other than the Participant's Normal Retirement
Date or Postponed Retirement Date, if applicable (both as
defined in this Plan), or are paid in a form other than the
120 months certain annuity, such retirement benefit shall be
adjusted based on this Plan's definition of Actuarial
Equivalence.
(v) "PENSION TRUST" means The Century Bancorp Pension Trust, a
pension plan qualified under Section 401 of the Code.
(w) "PLAN" means The Century Bancorp Supplemental Executive
Retirement and Insurance Plan.
(x) "PLAN YEAR" means the 12-month period ending on September 30.
(y) "POSTPONED RETIREMENT DATE" means the first day of any month
after a Participant's Normal Retirement Date and after his
termination of employment.
(z) "SENIOR MANAGEMENT GROUP" means the group of Employees so
designated for purposes of participation in this Plan.
(aa) "SOCIAL SECURITY BENEFIT" means an estimate made by the
Actuary of the monthly primary old-age Social Security Benefit
(under Title II of the federal Social Security Act) which
would be payable commencing at Normal Retirement or a
Postponed Retirement Date, if applicable, assuming the
Participant has the number of covered employment years
required to maximize his Social Security Benefit.
(bb) "YEARS OF PLAN PARTICIPATION" means 1/12 of the number of
calendar months while an Employee is employed by the Employer
and while he is designated as a Participant in this Plan. When
this calculation results in a number of years plus a fraction
of a year, if the fraction is 5/12 or less it shall be
ignored, otherwise it will be considered the same as one full
year.
1.2 CONSTRUCTION
(a) Where necessary or appropriate to the meaning hereof, the
singular shall be deemed to include the plural, the plural to include the
singular, the masculine to include the feminine, and the feminine to include the
masculine.
(b) If any provision of the Plan or the application thereof to any
circumstance or person is
5
invalid, the remainder of the Plan and the application thereof to other
circumstances or persons shall not be affected thereby.
(c) All headings contained herein are for convenience of reference
only and shall not be construed as a part of this Plan, or have any effect upon
the meaning of the provisions hereof.
(d) To the extent not preempted by federal law, the provisions of
the Plan shall be construed, administered, and enforced under the laws of the
Commonwealth of Massachusetts.
6
ARTICLE II
PARTICIPATION
2.1 PARTICIPATION
The Participants in the Plan will be such management employees as may
be selected from time to time by the Committee. Each individual who becomes a
Participant prior to January 1, 1989 will be designated by the Committee as
belonging to either the Executive Management Group or the Senior Management
Group for purposes of determining the Participant's benefits. Each employee who
becomes a Participant on or after January 1, 1989 will be a member of the Senior
Management Group. As of January 1, 1989, no Participant may be moved from one
group to the other.
The Committee may terminate an Employee's participation in the Plan
(while he is still an Employee), but, subject to Section 8.3, no such action
will reduce the Employer's obligation to any Participant below the amount to
which he would be entitled under the Plan as in effect immediately prior to such
action if his employment then terminated.
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ARTICLE III
ELIGIBILITY FOR BENEFITS
3.1 NORMAL RETIREMENT
A Participant who terminates employment with the Employer after
attaining his Normal Retirement Date, or after his Early Retirement Age but
having elected to defer commencement of his benefit until his Normal Retirement
Date, shall be eligible, upon application therefor, to receive the Normal
Retirement Benefit described in Section 4.1.
3.2 EARLY RETIREMENT
A Participant who has attained his Early Retirement Age shall be
eligible, upon application therefor, to receive the Early Retirement Benefit
described in Section 4.2.
3.3 DEFERRED VESTED RETIREMENT
A Participant who has attained age forty (40) and has at least five (5)
Years of Participation whose employment with the Employer is terminated prior to
attainment of his Normal Retirement Date shall, after attaining his Early
Retirement Age, be eligible, upon application therefor, to receive the Deferred
Vested Retirement Benefit described in Section 4.3.
8
ARTICLE IV
SUPPLEMENTAL RETIREMENT BENEFITS
4.1 NORMAL OR POSTPONED RETIREMENT BENEFITS
The monthly Normal Retirement Benefit of a Participant commencing on
the Participant's Normal Retirement Date or Postponed Retirement Date shall be
the sum of (a) minus (b) minus (c), subject to a minimum benefit (d) below, then
multiplied by his Accrual Percentage and then divided by twelve (12):
(a) His Benefit Percentage multiplied by his Average Compensation;
(b) His Pension Trust Offset;
(c) His Social Security Offset, which is equal to 100% of the
Social Security Benefit;
(d) $2,400
The monthly Retirement Benefit for Mr. Marshall M. Sloane has been
calculated as of January 1, 2001 based on his Accrual Percentage as of January
1, 2001, his Pension Trust offset as of January 1, 2001, and his Social Security
offset as of January 1, 2001, and will not change after January 1, 2001.
4.2 EARLY RETIREMENT BENEFITS
The monthly early retirement benefit of a Participant shall be the
benefit calculated in accordance with Section 4.1, provided, however, that to
the extent payment begins prior to the Participant's Normal Retirement Date, the
amount thereof shall be reduced according to the following schedule:
9
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Age of Commencement Early Retirement Percentage
- -------------------------------------------------------------------------
55 35%
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56 40
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57 45
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58 50
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59 55
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60 60
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61 68
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62 76
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63 84
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64 92
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65 100
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The above factors will be interpolated to the nearest month.
The monthly Early Retirement Benefit of a Participant, who has
commenced receiving payments on or after January 1, 1999, shall be the benefit
calculated in accordance with Section 4.1, provided., however, that to the
extent payment commences prior to the Participant's Normal Retirement Date, the
amount thereof shall be reduced 5/9% for each of the first sixty (60) months
that the commencement of payments precedes the Participant's Normal Retirement
Date and 5/18% for each of the next sixty (60) months.
The monthly Early Retirement Benefit of a Participant in the Executive
Management group, who has commenced receiving payments on or after January 1,
2002, shall be the benefit calculated in accordance with Section 4.1, provided,
however, that to the extent payment commences prior to the Participant's 62nd
birthday, the amount thereof shall be reduced 5/9% for each of the first
twenty-four (24) months that the commencement of payment precedes the
Participant's 62nd birthday and 5/18% for each for the next sixty (60) months.
4.3 DEFERRED VESTED RETIREMENT BENEFITS
The monthly deferred vested benefit of a Participant shall be the
benefit calculated in accordance with Section 4.1, provided, however, that to
the extent payment begins prior to the Participant's Normal Retirement Date, the
amounts thereof shall be reduced as in Section 4.2 above.
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ARTICLE V
PAYMENT OF BENEFITS
5.1 NORMAL FORM OF PAYMENT
Retirement benefits shall be paid to the Participant monthly for the
life of the Participant, but in any event for a minimum of one hundred and
twenty (120) months of payments.
If the Participant dies prior to the expiration of such one hundred and
twenty (120) month period, his Beneficiary will receive a monthly payment for
the remainder of the one hundred and twenty (120) month period equal to the
monthly amount payable to the Participant prior to his death. A Participant may
designate a Beneficiary entitled to receive benefits under this Section for the
balance of the one hundred and twenty (120) month period in writing on a form
satisfactory to the Employer. If, after the death of a Participant during the
one hundred and twenty (120) month period, there is no designated Beneficiary,
the present value of the Retirement Benefits remaining to be paid during the one
hundred and twenty (120) month period shall be calculated on the basis of the
Plan's Actuarial Equivalent assumptions and shall be paid as soon as practicable
to the Participant's estate.
5.2 OPTIONAL FORMS OF PAYMENTS
Subject to such rules and regulations as the Committee may establish
from time to time, a Participant eligible for a Normal, Early, or Deferred
Vested Retirement Benefit under the Plan may, in lieu of the Normal Form of
Retirement described in Section 5.1, elect to receive his benefit in the form of
one of the following optional forms of payment:
(a) JOINT AND SURVIVOR ANNUITIES
A Participant may elect a joint and survivor annuity which shall
provide that either one-fourth (1/4), one-half (1/2), two-thirds (2/3),
three-fourths (3/4), or all of the monthly joint and survivor benefit payable to
the Participant shall continue to be paid following his death to his designated
joint annuitant for the duration of such joint annuitant's life. A joint and
survivor annuity shall be the Actuarial Equivalent of the Participant's normal
form of payment described in Section 5.1. If the joint annuitant predeceases the
Participant after the benefit has commenced, the Participant shall continue to
receive the same amount as was being paid during their joint lives.
(b) LIFE ANNUITY AND TERM CERTAIN FORMS OF PAYMENT
A Participant may elect, in lieu of any other retirement benefit under
the Plan, to receive his benefit as a life annuity or as a five (5) or fifteen
(15) years certain annuity (a "Term Certain Annuity".)
Any such life annuity or Term Certain Annuity shall be the Actuarial
Equivalent of the
11
Normal Form of Payment in Section 5.1 to which the Participant would have been
entitled. A Term Certain Annuity shall provide a monthly pension for the life of
the Participant with monthly payments guaranteed for 60 or 180 months. If the
retired Participant begins to receive payments but does not live to receive 60
or 180 payments, then such payment shall continue to his designated Beneficiary
(or to his estate if the Beneficiary is deceased) until 60 or 180 payments have
been made.
5.3 FREQUENCY FORMS OF PAYMENTS
The Committee, at its discretion, may adjust the frequency of payment
of Retirement Benefits from monthly payment, with such adjustment being the
Actuarial Equivalent of the monthly Retirement Benefit.
5.4 NATURE OF PAYMENTS
The Employer shall not be required to set aside or segregate any assets
of any kind to meet its obligations hereunder. A Participant shall have no right
on account of this Plan in or to any specific assets of the Employer (other than
rights with respect to life insurance policies purchased under Article VI). Any
right to any payment that a Participant may have on account of the Plan shall be
those of a general, unsecured creditor of the Employer.
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ARTICLE VI
INSURANCE BENEFITS
6.1 AMOUNT OF INSURANCE
The Employer will purchase and maintain one or more insurance policies
on the life of each Participant which, upon the death of the Participant, will
pay directly to the Participant's Beneficiary an amount equal to:
(a) in the case of a Participant in the Executive Management Group
who dies while in the employment of the Employer, five (5)
times the annual rate of salary being paid to the Participant
at the time of his death, or
(b) in the case of a Participant in the Senior Management Group
who dies while in the employment of the Employer, four (4)
times the annual rate of salary being paid to the Participant
at the time of his death.
Any insurance amounts provided under this Article VI shall be in addition to any
group-term life insurance provided to the Participant by the Employer outside of
this Plan.
6.2 TERMINATION OF EMPLOYMENT
As of the date of a Participant's termination with the Employer for any
reason other than death;
(a) the Employer's obligations under this Article to purchase and
maintain insurance or otherwise provide a supplemental death
benefit with respect to the Participant shall cease;
(b) the Participant will have no further rights under this Article
or under any insurance policy purchased hereunder; and
(c) if the Employer in its discretion decides to continue to
maintain any insurance policies on the life of the Participant
purchased under this Article beyond his date of termination,
the Employer, and, if required by any such policies, the
Participant shall take all steps necessary to name the
Employer as the sole Beneficiary of such policies as of such
date.
6.3 BENEFICIARIES
A Participant may designate one or more Beneficiaries entitled to
receive benefits under this Article in the event of his death on a form
satisfactory to the Employer and the insurance company or companies issuing the
insurance policy or policies on his life hereunder; however, the Participant
13
shall have no other rights or incidence of ownership in any such policy.
6.4 TAXATION
It is intended that any death benefit payable under an insurance policy
purchased under this Article will not be includible in the income of the
Beneficiary for federal income tax purposes, but that the one-year term cost of
such life insurance protection, as determined under the applicable provisions of
the Code, will be includible in the gross income of a Participant while he has
the right to name a Beneficiary entitled to receive the death benefit.
6.5 PROCEDURES
A Participant shall cooperate fully with the Employer in connection
with any such policy, including, but not limited to, submitting to such medical
examinations, providing such information as may be required from time to time by
the Employer or the insurance company, and executing any forms required by
either the Employer or the insurance company.
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ARTICLE VII
PLAN ADMINISTRATION
7.1 PLAN ADMINISTRATOR
The Plan shall be administered by a Plan Committee.
7.2 COMPOSITION OF THE COMMITTEE
The Committee shall be composed of three or more members, who shall be
Employees or Directors of the Employer. Any member of the Committee may be
removed by the Employer at any time or may resign at any time by submitting his
resignation in writing to the Employer. A new Committee member shall be
appointed as soon as possible in the event that a Committee member is removed or
resigns. Any person so appointed shall signify his acceptance by filing a
written acceptance with the Employer. No member of the Committee who is a
Participant in this Plan may vote or otherwise participate in any decision or
act with respect to a matter relating solely to himself (or to himself and any
Beneficiary).
7.3 POWERS AND DUTIES OF COMMITTEE
The Committee will have authority to interpret the provisions of the
Plan and decide all questions and settle all disputes which may arise in
connection with the Plan and may establish its own operating and administrative
rules and procedures in connection therewith. All interpretations, decisions,
and determinations made by the Committee will be binding on all persons
concerned.
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ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 NO CONTRACT OF EMPLOYMENT
The Plan will not be deemed to constitute a contract of employment
between the Employer and any Participant, or to be consideration for the
employment of any Participant. The Plan will not be deemed to give any
Participant the right to be retained in the employ of the Employer or to affect
the Employer's ability to discharge any Participant at any time.
8.2 ASSIGNMENT
The interest hereunder of any Participant or Beneficiary will not be
alienable by the Participant or Beneficiary by assignment or any other method
and will not be subject to be taken by his creditors to any process whatsoever,
and any attempt to cause such interest to be so subjected will not be
recognized, except to such extent as may be required by law.
The obligations of the Employer hereunder shall be binding on its
successors or assigns, whether by merger, consolidation, or acquisition of all
or substantially all of its business or assets.
8.3 FORFEITURE IN THE EVENT OF DISCHARGE FOR CAUSE
Notwithstanding any provision in this Plan to the contrary, no
Retirement Benefits will be payable hereunder with respect to any Participant
who is discharged from the Employer for cause. For purposes of this Plan only
the following shall constitute "cause":
(a) the Participant's falsification of accounts of the Employer,
embezzlement of funds from the Employer, or commission of any
act constituting gross dereliction of duties; or
(b) the conviction of the Participant for, or entry of a pleading
of guilty or nolo contendere by the Participant to, any crime
involving moral turpitude or any felony.
8.4 AMENDMENT
The Plan (including the attached Schedule A) may be altered, amended,
or revoked in writing by the Employer at any time, but no such action may reduce
the Employer's obligation with respect to a Participant who is then still
employed by the Employer below the amount to which he would be entitled under
the Plan as in effect immediately prior to such action if his employment then
terminated, and no such action may reduce the Employer's obligation with respect
to a Participant whose employment with Employer has already then terminated.
16
IN WITNESS WHEREOF, the Employer, by its duly authorized officer, has
executed this amended and restated Plan, this thirty-first day of January, 2002.
CENTURY BANCORP, INC.
By: /s/ Paul V. Cusick, Jr.
-----------------------
17
Schedule A
CHANGE OF CONTROL DEFINITION
"Change of Control" means the occurrence of anyone of the following
events:
(a) there occurs a change of control of Century Bancorp, Inc. of a
nature that would be required to be reported in response to
Item 1(a) of the Current Report on Form 8-K pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 or
in any other filing under the Securities Exchange Act of 1934;
or
(b) any Person (other than family members of Marshall M. Sloane)
becomes the owner of 25% or more of the Employer's Class B
Common Stock and thereafter individuals who were not directors
of the Employer prior to the date such Person became a 25%
owner are elected as directors pursuant to an arrangement or
understanding with, or upon the request of, or nomination by,
such Person and constitute at least 25% of the Board of
Directors; or
(c) there occurs any solicitation or series of solicitations of
proxies by or on behalf of any Person other than the Board of
Directors and thereafter individuals who were not directors of
the Employer prior to the commencement of such solicitation,
or series of solicitations, are elected as directors pursuant
to an arrangement or understanding with, or upon the request
of or nomination by, such Person and constitute at least 25%
of the Board of Directors; or
(d) the Employer executes an agreement of acquisition, merger, or
consolidation which contemplates that (i) after the effective
date provided for in the agreement all or substantially all of
the business and/or assets of the Employer shall be owned,
leased, or otherwise controlled by another corporation or
entity, and (ii) individuals who are directors of the Employer
when such agreement is executed shall not constitute a
majority of the board of directors of the survivor or
successor company immediately after the effective date
provided for in such agreement; provided, however, for
purposes of this paragraph (d) that if such agreement requires
as a condition precedent approval by the Employer's
shareholders of the agreement or transaction, a Change of
Control shall not be deemed to have taken place unless and
until such approval is secured (but upon any such approval a
Change of Control shall be deemed to have occurred on the date
of execution of such agreement).
For purposes of the above, the following definitions apply:
"Common Stock" shall mean the then outstanding Common Stock of
the Employer plus, for purposes of determining the stock ownership of any
Person, the number of unissued shares of Common Stock which such Person has the
right to acquire (whether such right is exercisable immediately or only after
the passage of time) upon the exercise of conversion rights, exchange
18
rights, warrants, or options or otherwise. Notwithstanding the foregoing, the
term Common Stock shall not include shares of preferred stock or convertible
debt or options or warrants to acquire shares of Common Stock (including any
shares of Common Stock issued or issuable upon the conversion or exercise
thereof) to the extent that the Board of Directors shall expressly so determine
in any future transaction or transactions.
A Person shall be deemed to be the "owner" of any Common Stock:
(i) if which such Person would be "beneficial owner" as such term
is defined in Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934;
or
(ii) if which such Person would be the "beneficial owner" as such
term is defined under Section 16 of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange
Commission promulgated thereunder; or
(iii) which such Person or any of its Affiliates or Associates (as
such terms are defined in Rule 12B-2 promulgated by the
Securities Exchange Commission under the Securities and
Exchange Act of 1934) has the right to acquire (whether such
right is exercisable immediate or only after the passage of
time) pursuant to any agreement, arrangement, or
understanding, or upon the exercise of conversion rights,
exchange rights, warrants, or options or otherwise.
"Person" shall have the meaning used in Section 13(d) of the Securities
Exchange Act of 1934.
19