As Amended And Restated
, the Company and the Executive wish to amend and restate the Executive Employment
(the 2004 Agreement), dated as of July 12, 2004, in order to comply with Section 409A
of the Internal Revenue Code of 1986, as amended (the Code), and the regulations and guidance
promulgated thereunder (collectively, Code Section 409A), and in order to extend the term of the
Agreement in accordance with Section 2 below..
NOW, THEREFORE, in consideration of the Executives continued employment and the mutual
covenants herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
(a) TERM AND POSITION. During the Employment Term (as defined in Section 2 below), the
Executive shall serve as the Chief Executive Officer of the Company. In this capacity, the
Executive shall have such duties, authorities and responsibilities commensurate with the duties,
authorities and responsibilities of persons in similar capacities in similarly sized companies, and
such other duties, authorities and responsibilities as the Board of Directors of the Company (the
Board) shall designate that are consistent with the Executives position as Chief Executive
Officer of the Company. The Executive shall report to the Board.
(b) FULL TIME During the Employment Term, the Executive shall devote all of his business
time, energy and skill and his best efforts to the performance of his duties with the Company,
provided the foregoing shall not prevent the Executive from (i) serving on the board of directors
of nonprofit organizations and, with the prior written approval of the Board, other companies, (ii)
participating in charitable, civic, educational, professional, community or
industry affairs and (iii) managing his and his familys passive personal investments so long
as such activities in the aggregate do not interfere or conflict with his duties hereunder or
create a potential business conflict.
(c) SERVICE ON BOARD OF DIRECTORS. During the Employment Term, the Board shall nominate the
Executive for re-election as a member of the Board at the expiration of the then current term,
provided that the foregoing shall not be required to the extent prohibited by legal or regulatory
2. EMPLOYMENT TERM. The Executives term of employment is for a term that commenced on August
1, 2004 (the Effective Date) and, unless terminated earlier as provided in Section 8, will end on
December 31, 2012 (the Employment Term).
3. BASE SALARY. The Company agrees to pay the Executive a base salary at an initial rate (as
of the Effective Date) of not less than $600,000, payable in accordance with the regular payroll
practices of the Company, but not less frequently than monthly. The Executives Base Salary shall
be subject to annual review by the Board (or a committee thereof) and may be increased, but not
decreased, from time to time by the Board. The base salary as determined herein from time to time
shall constitute Base Salary for purposes of this Agreement.
4. BONUS. (a) During the Employment Term, the Executive shall be eligible for an annual
discretionary incentive payment under the Companys 1995 Stock Option and Incentive Plan, as
amended (the 1995 Plan) or any successor annual bonus plan with a target of at least 100% of
Executives then-current Base Salary (the Target Bonus) and with a potential maximum annual
incentive payment of 200% of Executives then-current Base Salary (as prorated for partial years),
upon the attainment of one or more pre-established performance goals established by the Board or
the Companys Compensation and Human Resources Committee (the Compensation Committee). Such
bonus shall be paid in the calendar year immediately following the calendar year in which it was
earned, unless it is deferred pursuant to the terms of an incentive plan or a timely permitted
election by the Executive.
5. EQUITY AWARDS. The Executive shall be eligible to participate in the Companys long-term
performance incentive program as generally applicable to other senior executives at a level
commensurate with his position, but any grant shall be at the sole discretion of the Board or the
6. STOCK OWNERSHIP REQUIREMENT. The Executive shall be subject to the terms and conditions of
the Companys stock ownership requirements for senior executives as in effect from time to time.
Under the terms of the current policy, fifty percent of the after-tax shares of Common Stock
awarded to the Executive pursuant to any annual incentive deferrals as provided in Section 4 or
equity award pursuant to Section 5, shall be held by the Company in accordance with its policies
and will not be transferable by the Executive until the Executive has accumulated 250,000 shares of
the Companys Common Stock or terminates employment. All shares of Common Stock owned outright by
the Executive shall count towards satisfying the Companys stock ownership requirements, including
shares acquired in the open market or shares retained from the exercise of the stock options.
7. EMPLOYEE BENEFITS.
(a) BENEFIT PLANS. The Executive shall be entitled to participate in any employee benefit
plan that the Company has adopted or may adopt, maintain or contribute to for the benefit of its
senior executives at a level commensurate with his position, subject to satisfying the applicable
eligibility requirements. The Company, in the name of the Executive, shall pay the initiation fee
and monthly dues for one social club or one country club in the proximate geographic area of the
Companys executive offices. The Company shall use its commercially reasonable efforts to cause
the waiver of any waiting period from the Effective Date for the Executive under any employee
welfare benefit plan (as defined in Section 3(1) of the Employee Retirement Income Security Act of
1974, as amended) other than the Companys health plan, but at no extra cost to it and without
jeopardizing tax-favored status of any plan. The Company shall pay the Executives (and his
dependents) premiums for continuation coverage under the health plan of his prior employer until
the Executive first becomes eligible to participate in the Companys health plan. Notwithstanding
the foregoing, the Company may modify or terminate any employee benefit plan at any time.
(b) VACATIONS. The Executive shall be entitled to an annual paid vacation of four weeks per
calendar year (as prorated for partial years) in accordance with the Companys policy on accrual
and use applicable to senior executives; provided, however that at all times, the Executive shall
be reachable during vacation.
(c) BUSINESS AND ENTERTAINMENT EXPENSES AND REIMBURSEMENTS. Upon presentation of appropriate
documentation, the Executive shall be reimbursed in accordance with the Companys expense
reimbursement policy, for all reasonable and necessary business and entertainment expenses incurred
in connection with the performance of his duties hereunder. Reimbursements of expenses under this
Section 7(c) or under other provisions of this Agreement shall be paid as soon as practicable but
no later than the last day of the calendar year following the calendar year in which the expenses
are incurred, and shall otherwise comply with Section 27(e).
8. TERMINATION. For purposes of this Agreement, a termination of employment shall not be
deemed to have occurred for purposes of any provision of this Agreement providing for the payment
of any amounts or benefits subject to Section 409A upon or following a termination of employment
unless such termination is also a separation from service within the meaning of Section 409A,
and, for purposes of any such provision of this Agreement, references to a termination,
terminate, termination of employment or like terms shall mean separation from service. The
Executives employment and the Employment Term shall terminate on the first of the following to
(a) DISABILITY. Upon 10 days prior written notice by the Company to the Executive of
termination due to Disability. For purposes of this Agreement, Disability shall be defined as the
Executives physical or mental incapacity which has prevented the Executive from performing his
material duties hereunder for 180 days (including weekends and holidays) in any 365-day period or
the Boards good faith determination that the Executive will not be able to perform his material
duties for six consecutive months (including any consecutive period of prior incapacity).
Notwithstanding the foregoing, in the event the Executive has earlier incurred a
separation from service, as defined in Section 409A, as a result of a physical or mental
incapacity, upon such separation from service, the Executive shall be deemed to have incurred a
(b) DEATH. Automatically on the date of death of the Executive.
(c) CAUSE. The Company may terminate the Executives employment hereunder for Cause
immediately upon written notice by the Company to the Executive of a termination for Cause. Cause
shall mean (i) the Executives dishonesty in his financial dealings with, or on behalf of, the
Company; (ii) the Executives commission of, indictment for or pleading guilty or nolo contendere
to a crime by the Executive which constitutes (x) a felony (other than a traffic related offense)
or (y) a misdemeanor involving moral turpitude and which, in the case of (y), may reasonably be
expected to have an adverse effect on the Company, its business, reputation or interest; (iii)
Executives material breach of this Agreement or any other contract or agreement between the
Executive and the Company, which breach, if curable, is not cured within 20 days of the giving of
written notice thereof to the Executive; (iv) the Executives material violation of the Companys
code of conduct, code of ethics or any other written policy or a material breach by the Executive
of a fiduciary duty or responsibility to the Company; (v) the refusal of the Executive to follow
the lawful policies and directives of the Board within five days of the giving of written notice
thereof to the Executive; (vi) the willful misconduct or gross negligence of the Executive with
regard to the Company or in the performance of his duties that is materially injurious to the
Company; or (vii) the willful and continued failure of the Executive to attempt to perform the
Executives duties with the Company (other than for any such failure resulting from the Executives
incapacity due to physical or mental illness) after written notice of such failure has been give to
(d) WITHOUT CAUSE. Upon written notice by the Company to the Executive of an involuntary
termination without Cause, other than for death or Disability.
(e) GOOD REASON. Upon written notice by the Executive to the Company of a termination for
Good Reason. Good Reason shall mean the occurrence of any of the following events, without the
express written consent of the Executive, unless such events are fully corrected in all material
respects by the Company within 30 days following written notification by the Executive to the
Company that he intends to terminate his employment hereunder for one of the reasons set forth
(i) any reduction or diminution (except temporarily during any period of physical or
mental incapacity) in the Executives titles or a material reduction or diminution in the
Executives authorities, duties or responsibilities or reporting requirements with the
Company including but not limited to a failure to elect the Executive to the Board or
removal of the Executive from the Board, except if such removal is necessary as a result of
legal or regulatory requirements, or the assignment to the Chairman of the Company of any or
all of the material authorities, duties or responsibilities normally assigned to the chief
executive officer; provided that if the Executive is Chairman of the Board, removal or
non-reelection of him to such position shall not be Good Reason;
(ii) a material breach by the Company of any provisions of this Agreement, including,
but not limited to, any reduction in any part of the Executives Base Salary;
(iii) the failure of the Company to obtain and deliver to the Executive a satisfactory
written agreement from any successor to the Company to assume and agree to perform this
(iv) the Executive is required to relocate to a principal place of employment more than
60 miles from his principal place of employment with the Company.
(f) WITHOUT GOOD REASON. Upon 60 days prior written notice by the Executive to the Company
of the Executives voluntary termination of employment without Good Reason (which the Company may,
in its sole discretion, make effective earlier than any notice date).
9. CONSEQUENCES OF TERMINATION.
(a) DISABILITY. Upon such termination, the Company shall pay or provide the Executive (i) any
unpaid Base Salary through the date of termination on the date it would have been paid if the
Executive continued employment; (ii) any bonus earned but unpaid with respect to the fiscal year
ending on or preceding the date of termination on the date it would have been paid if the Executive
continued employment; (iii) reimbursement for any unreimbursed expenses incurred through the date
of termination, in accordance with Section 27(e); (iv) a pro-rata portion of the Executives bonus
for the fiscal year in which the Executives termination occurs based on actual results for the
plan year (determined by multiplying the amount of such bonus which would be due for the full
fiscal year by a fraction, the numerator of which is the number of days during the fiscal year of
termination that the Executive is employed by the Company and the denominator of which is 365),
payable when it would have been paid if the Executive continued employment; (v) any accrued but
unused vacation time in accordance with Company policy; and (vi) any benefits or rights to equity
interests in accordance with applicable plans and grants (collectively items (i) through (vi) shall
be hereafter referred to as Accrued Benefits).
(b) DEATH. In the event the Employment Term ends on account of the Executives death, the
Executives estate shall be entitled to any Accrued Benefits.
(c) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If the Executives employment should be
terminated (x) by the Company for Cause, or (y) by the Executive without Good Reason or (z) upon
expiration of the Term on the fourth anniversary of the Effective Date, the Company shall pay to
the Executive, subject to Section 9(f), any Accrued Benefits (other than, in the case of (x) or
(y), those described in Sections 9(a)(ii) and 9(a)(iv)).
(d) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON CONTINUED BASE SALARY FOR 24 MONTHS. If
the Executives employment by the Company is terminated (x) by the Company other than for Cause or
(y) by the Executive for Good Reason, the Company shall pay or provide the Executive with (i)
Accrued Benefits; and
(ii) subject to the Executives compliance with the obligations in Sections 10, 12 and 13
hereof, an amount equal to the Executives monthly Base Salary rate (but not as an employee) which
would continue to be paid monthly for a period of 24 months. Payments provided in this Section 9(d)
shall be in lieu of any termination or severance payments or benefits for which the Executive may
be eligible under any of the plans, policies or programs of the Company.
(e) PAYMENT COMMENCEMENT. Unless paid on a specified date described herein, or subject to
delayed commencement as described below, payments under Section 9 shall commence 60 days after the
Executives termination, but as to payments that otherwise would have been paid prior to the 60th
day after termination, such amounts shall be paid in a lump sum on such 60th day.
(f) SIX MONTH DELAY FOR SPECIFIED EMPLOYEES. If the Executive is deemed on the date of
termination to be a specified employee within the meaning of Code Section 409A(a)(2)(B), then
with regard to any payment or the provision of any benefit (whether under this Section 9, pursuant
to other provisions of this Agreement or otherwise) that is considered deferred compensation under
Section 409A payable on account of a separation from service, such payment shall not be paid (or
commence) earlier than the date that is six months following the termination of employment or the
Executives earlier death. Upon the expiration of the six month period or on the Executives
earlier death, all payments and benefits delayed pursuant to this Section 9(f) (whether they would
have otherwise been payable in a single sum or in installments in the absence of such delay) shall
be paid or reimbursed to the Employee in a lump sum, and any remaining payments and benefits due
under this Agreement shall be paid or provided in accordance with the normal payment dates
specified for them herein.
10. RELEASE. Any and all amounts payable and benefits or additional rights provided pursuant
to this Agreement beyond Accrued Benefits shall be contingent upon the Executive executing and not
revoking within the revocation period, within 60 days following the effective date of termination,
a general release of all claims by the Executive against the Company and its affiliates in such
form as required by the Company and given within seven days of termination, and all amounts other
than Accrued Benefits shall be paid on the 60th day following the Executives date of termination.
11. CHANGE IN CONTROL AGREEMENT/EXCISE TAX. The Executive and the Company have entered into
the Companys current standard form of change in control severance agreement (the Standard Change
in Control Agreement), except that the Executives agreement is for a term of two years, is based
on a multiple of two times Base Salary and bonus for severance, and in lieu of the provision in the
Standard Change in Control Agreement as to Code Section 280G, the provisions of Exhibit A apply.
12. (a) CONFIDENTIALITY. The Executive agrees that he shall not, directly or indirectly, use,
make available, sell, disclose or otherwise communicate to any person, other than in the course of
the Executives assigned duties and for the benefit of the Company, either during the period of the
Executives employment or at any time thereafter, any nonpublic, proprietary or confidential
information, knowledge or data relating to the Company, any of its subsidiaries, affiliated
companies or businesses, which shall have been obtained by the Executive during the Executives
employment by the Company. The foregoing shall not apply to information that (i)
was known to the public prior to its disclosure to the Executive; (ii) becomes generally known
to the public subsequent to disclosure to the Executive through no wrongful act of the Executive or
any representative of the Executive; or (iii) the Executive is required to disclose by applicable
law, regulation or legal process (provided that the Executive provides the Company with prior
notice of the contemplated disclosure and reasonably cooperates with the Company at its expense in
seeking a protective order or other appropriate protection of such information).
(b) NONSOLICITATION. During the Executives employment with the Company and for the two year
period thereafter, the Executive agrees that he will not, except in the furtherance of his duties
hereunder, directly or indirectly, individually or on behalf of any other person, firm, corporation
or other entity, (i) solicit, aid or induce any employee, representative or agent of the Company or
any of its subsidiaries or affiliates to leave such employment or retention or to accept employment
with or render services to or with any other person, firm, corporation or other entity unaffiliated
with the Company or hire or retain any such employee, representative or agent, or take any action
to materially assist or aid any other person, firm, corporation or other entity in identifying,
hiring or soliciting any such employee, representative or agent, (ii) solicit, aid or induce any
customer of the Company or any of its subsidiaries or affiliates to purchase goods or services then
sold by the Company or any of its subsidiaries or affiliates from another person, firm, corporation
or other entity or assist or aid any other persons or entity in identifying or soliciting any such
customer or (iii) solicit, aid or induce any vendor of the Company or any of its subsidiaries or
affiliates to provide goods or services then provided to the Company or any of its subsidiaries or
affiliates to another person, firm, corporation or other entity or assist or aid any other persons
or entity in identifying or purchasing goods or services from such vendor. An employee,
representative or agent shall be deemed covered by this paragraph while so employed or retained and
for six months thereafter. Subpart (ii) shall not be violated by general advertising or
solicitation not specifically targeted at activities of the Company.
(c) NONCOMPETITION. The Executive acknowledges that be performs services of a unique nature
for the Company that are irreplaceable, and that his performance of such services to a competing
business will result in irreparable harm to the Company. Accordingly, during the Executives
employment hereunder and for the two year period thereafter, the Executive agrees that the
Executive will not, directly or indirectly, own, manage, operate, control, be employed by (whether
as an employee, consultant, independent contractor or otherwise, and whether or not for
compensation) or render services to any person, firm, corporation or other entity, in whatever
form, engaged in the production, sales or marketing of manufactured housing or any other material
business in which the Company or any of its subsidiaries or affiliates is engaged on the date of
termination (or, if earlier, the date of determination) or in which they have planned, on or prior
to such date, to be engaged in on or after such date, in any locale of any country in which the
Company conducts business. This Section 12(c) shall not prevent the Executive from owning not more
than two percent of the total shares of all classes of stock outstanding of any publicly held
entity engaged in such business.
(d) NONDISPARAGMENT. The Executive shall not make or induce other persons or entities to make
any negative statements as to the Company, its affiliates, employees, past or present officers,
directors, products, services, businesses or reputation. Notwithstanding the foregoing, truthful
statements made in the course of sworn testimony in administrative,
judicial or arbitral proceedings (including, without limitation, depositions in connection
with such proceedings) shall not be subject to this Section 12(d).
(e) REFORMATION. If it is determined by a court of competent jurisdiction in any state that
any restriction in this Section 12 is excessive in duration or scope or is unreasonable or
unenforceable under the laws of that state, it is the intention of the parties that such
restriction may be modified or amended by the court to render it enforceable to the maximum extent
permitted by the law of that state.
(f) SURVIVAL OF PROVISIONS. The obligations contained in this Section 12 shall survive the
termination or expiration of the Executives employment with the Company and shall be fully
13. COOPERATION. Upon the receipt of reasonable notice from the Company (including outside
counsel), the Executive agrees that while employed by the Company and thereafter, the Executive
will respond and provide information with regard to matters in which he has knowledge as a result
of his employment with the Company, and will provide reasonable assistance to the Company, its
affiliates and their respective representatives in defense of any claims that may be made against
the Company or its affiliates, and will assist the Company and its affiliates in the prosecution of
any claims that may be made by the Company or its affiliates, to the extent that such claims may
relate to the period of the Executives employment with the Company. The Executive agrees to
promptly inform the Company if he becomes aware of any lawsuits involving such claims that may be
filed or threatened against the Company or its affiliates. The Executive also agrees to promptly
inform the Company (to the extent he is legally permitted to do so) if he is asked to assist in any
investigation of the Company or its affiliates (or their actions), regardless of whether a lawsuit
or other proceeding has then been filed against the Company or its affiliates with respect to such
investigation, and shall not do so unless legally required. Upon presentation of appropriate
documentation, the Company shall pay or reimburse the Executive for all reasonable out-of-pocket
travel, duplicating or telephonic expenses incurred by the Executive in complying with this Section
13, in accordance with Section 27(c).
14. EQUITABLE RELIEF AND OTHER REMEDIES.
(a) EQUITABLE RELIEF. The Executive acknowledges and agrees that the Companys remedies at
law for a breach or threatened breach of any of the provisions of Section 12 or Section 13 would be
inadequate and, in recognition of this fact, the Executive agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific performance, temporary
restraining order, a temporary or permanent injunction or any other equitable remedy which may then
(b) In the event of a violation of Section 12 or 13 of this Agreement, any severance being
paid to the Executive pursuant to this Agreement, the Standard Change in Control Agreement (or any
successor agreement) or otherwise shall immediately cease.
15. NO ASSIGNMENTS.
(a) This Agreement is personal to each of the parties hereto. Except as provided in Section
15(b) below, no party may assign or delegate any rights or obligations hereunder without first
obtaining the written consent of the other party hereto.
(b) The Company may assign this Agreement to any successor to all or substantially all of the
business and/or assets of the Company provided the Company shall require such successor to
expressly assume and agree to perform this Agreement and, if applicable, any Change in Control
Agreement (but without creating any rights on a second change in control), in the same manner and
to the same extent that the Company would be required to perform it if no such succession had taken
16. NOTICE. For the purpose of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly given (i) on the
date of delivery if delivered by hand, (ii) on the date of transmission, if delivered by confirmed
facsimile, (iii) on the first business day following the date of deposit if delivered by guaranteed
overnight delivery service, or (iv) on the fourth business day following the date delivered or
mailed by United States registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
At the address (or to the facsimile number) shown on the
records of the Company
If to the Company:
Champion Enterprises, Inc.
755 West Big Beaver Road
Troy , MI 48084
Attention: General Counsel
or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.
17. SECTION HEADINGS; INCONSISTENCY. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the interpretation of
this Agreement. In the event of any inconsistency between the terms of this Agreement and any
form, award, plan or policy of the Company, the terms of this Agreement shall control.
18. SEVERABILITY. The provisions of this Agreement shall be deemed severable and the
invalidity of unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.
19. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and the same instruments.
20. ARBITRATION. Any dispute or controversy arising under or in connection with this
Agreement or the Executives employment with the Company, other than injunctive relief under
Section 14 hereof, shall be settled exclusively by arbitration, conducted before a single
arbitrator in Detroit, Michigan (applying Michigan law) in accordance with the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association then in effect. The
decision of the arbitrator will be final and binding upon the parties hereto. Judgment maybe
entered on the arbitrators award in any court having jurisdiction. The parties acknowledge and
agree that in connection with any such arbitration and regardless of outcome (a) each party shall
pay all its own costs and expenses, including without limitation its own legal fees and expenses,
and (b) joint expenses shall be borne equally among the parties.
21. INDEMNIFICATION. The Company hereby agrees to indemnify the Executive and hold him
harmless to the extent provided under the by-laws of the Company against and in respect to any and
all actions, suits, proceedings, claims, demands, judgments, costs, expenses (including reasonable
attorneys fees), losses, and damages resulting from the Executives good faith performance of his
duties and obligations with the Company. This obligation shall survive the termination of the
Executives employment with the Company.
22. LIABILITY INSURANCE. The Company shall cover the Executive under directors and officers
liability insurance both during and, while potential liability exists, after the term of this
Agreement in the same amount and to the same extent as the Company covers its other officers and
23. MISCELLANEOUS. No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and signed by the Executive
and such officer or director as may be designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any prior or subsequent time. This
Agreement together with all exhibits hereto sets forth the entire agreement of the parties hereto
in respect of the subject matter contained herein. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of the State of
Michigan without regard to its conflicts of law principles.
24. NO MITIGATION. In no event shall the Executive be obliged to seek other employment or
take any other action by way of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement, nor shall the amount of any payment hereunder be reduced by any
compensation earned by the Executive as a result of employment by another employer, except as
provided in Section 14(b) hereof.
25. REPRESENTATIONS. The Executive represents and warrants to the Company that he has the
legal right to enter into this Agreement and to perform all of the obligations on his part to be
performed hereunder in accordance with its terms and that he is not a party to any agreement or
understanding, written or oral, which could prevent him form entering into this Agreement or
performing all of his obligations hereunder.
26. WITHHOLDING. The Company may withhold from any and all amounts payable under this
Agreement such federal, state and local taxes as may be required to be withheld pursuant to any
applicable law or regulation.
27. APPLICATION OF SECTION 409A.
(a) COMPLIANCE. The parties hereby agree that the provisions of this Agreement shall be
interpreted to comply with, or be exempt from, Section 409A, and all provisions of this Agreement
shall be construed in a manner consistent with the requirements for avoiding taxes or penalties
under Section 409A. If any provision of this Agreement (or of any award of compensation) would
cause the Executive to incur any additional tax or interest under Section 409A and modifying it
would avoid such additional tax, the Company shall, upon the Executives specific written request,
use its reasonable business efforts to in good faith reform such provision to comply with Section
409A; provided that the Company and the Executive agree to maintain, to the maximum extent
practicable, the original intent and economic benefit to the Executive and the Company of the
applicable provision without violating the provisions of Section 409A.
(b) SEPARATION FROM SERVICE. A termination of employment shall not be deemed to have occurred
for purposes of any provision of this Agreement providing for the payment of any amounts or
benefits upon or following a termination of employment unless such termination is also a
separation from service within the meaning of Section 409A and, for purposes of any such
provision of this Agreement, references to a resignation, termination, terminate,
termination of employment or like terms shall mean separation from service.
(c) INSTALLMENTS TREATED AS SEPARATE PAYMENTS. If under this Agreement, an amount is to be
paid in two or more installments, for purposes of Section 409A, each installment shall be treated
as a separate payment.
(d) DISCRETION OF COMPANY TO PAY WITHIN NUMBER OF DAYS. Whenever a payment under this
Agreement specifies a payment period with reference to a number of days (e.g., payment shall be
made within 30 days following the Effective Date), the actual date of payment within the specified
period shall be within the sole discretion of the Company.
(e) REIMBURSEMENTS. Reimbursements of expenses payable to the Executive under this Agreement
shall be paid no later than the last day of the calendar year following the calendar year in which
the expenses to be reimbursed are incurred. With regard to such reimbursements or any in-kind
benefits under this Agreement, except as permitted by
Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for
reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses
eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided
that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any
arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit
related to the period the arrangement is in effect.
28. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
Golden Parachute Provision
(a) In the event that the Executive shall become entitled to payments and/or benefits provided
by this Agreement or any other amounts in the nature of compensation (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the Company, any person
whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of
the Code or any person affiliated with the Company or such person) as a result of such change in
ownership or effective control (collectively the Company Payments), and such Company Payments
will be subject to the tax (the Excise Tax) imposed by Section 4999 of the Code (and any similar
tax that may hereafter be imposed by any taxing authority) the Company shall pay to the Executive
an additional amount (the Gross-Up Payment) such that the net amount retained by the Executive,
after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and for
local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but
before deduction for any U.S. federal, state, and local income or payroll tax on the Company
Payments, shall be equal to the Company Payments. Any Gross-Up Payments hereunder shall be
remitted, within the time specified, to the Executive but not later than the end of the calendar
year following the calendar year in which the Executive remits the related taxes to the appropriate
Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that if the Company Payments (other than that portion valued under Treasury
Regulation Section 1.280G, Q&A 24(c)) (the Cash Payments) are reduced by the amount necessary
such that the receipt of the Company Payments would not give rise to any Excise Tax (the Reduced
Payment) and the Reduced Payment would not be less than 92.5% of the Cash Payment, then no
Gross-Up Payment shall be made to the Executive and the Cash Payments, in the aggregate, shall be
reduced to the Reduced Payment. If the Reduced Payment is to be effective, payments shall be
reduced in the following order (1) acceleration of vesting of any stock options for which the
exercise price exceeds the then fair market value, (2) any cash severance based on a multiple of
Base Salary or Bonus, (3) any other cash amounts payable to the Executive, (4) any benefits valued
as parachute payments; and (5) acceleration of vesting of any equity not covered by (1) above.
In the event that the Internal Revenue Service or court ultimately makes a determination that
the excess parachute payments plus the base amount is an amount other than as determined initially,
an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Payment, as
applicable to reflect the final determination and the resulting impact on whether the preceding
(b) For purposes of determining whether any of the Company Payments and Gross-up Payments
(collectively the Total Payments) will be subject to the Excise Tax and the amount of such Excise
Tax, (x) the Total Payments shall be treated as parachute payments within the meaning of Section
280G(b)(2) of the Code, and all parachute payments in excess of the base amount (as defined
under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and
except to the extent that, in the determination of the Companys independent certified public
accountants or tax counsel selected by such accountants or the
Company (the Accountants) such Total Payments (in whole or in part) either do not constitute
parachute payments, including giving effect to the recalculation of stock options in accordance
with Treasury Regulation Section 1.280G-1, Q&A 33, represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base
amount or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits
or any deferred payment or benefit shall be determined by the Accountants in accordance with the
principles of Section 280G of the Code. To the extent permitted under Revenue Procedure 2003-68 or
other applicable rules, the value determination shall be recalculated to the extent it would be
beneficial to the Company. The determination of the Accountants shall be final and binding upon
the Company and the Executive, except to the extent provided herein with regard to Internal Revenue
Service determinations. The Company shall be responsible for all charges of the Accountants.
(c) In the event that the Excise Tax is subsequently determined by the Accountants to be less
than the amount taken into account hereunder at the time the Gross-up Payment is made, the
Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax
is finally determined, the portion of the prior Gross-up Payment attributable to such reduction
(plus the portion of the Gross-up Payment attributable to the Excise Tax and U.S. federal, state
and local income tax imposed on the portion of the Gross-up Payment being repaid by the Executive
if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income
tax deduction), plus interest on the amount of such repayment at the rate provided in Section
1274(b)(2)(B) of the Code. The Company shall be responsible for all charges of the Accountant.
In the event that the Excise Tax is later determined by the Accountant or the Internal Revenue
Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made
(including by reason of any payment the existence or amount of which cannot be determined at the
time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of
such excess (plus any interest or penalties payable with respect to such excess) at the time that
the amount of such excess is finally determined.
(d) The Gross-up Payment or portion thereof provided for in subsection (c) above shall be paid
not later than the 30th day following an event occurring which subjects the Executive to the Excise
Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be
finally determined on or before such day, the Company shall pay to the Executive on such day an
estimate, as determined in good faith by the Accountant, of the minimum amount of such payments and
shall pay the remainder of such payments (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (c) hereof, as soon
as the amount thereof can reasonably be determined, but in no event later than the 90th day after
the occurrence of the event subjecting the Executive to the Excise Tax. In the event that the
amount of the estimated payments exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company to the Executive, payable on the fifth day after
demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the
(e) In the event of any controversy with the Internal Revenue Service (or other taxing
authority) with regard to the Excise Tax, the Executive shall permit the Company to control
issues related to the Excise Tax (at its expense). In the event of any conference with any
taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the
representative of the Company to accompany the Executive, and the Executive and the Executives
representative shall cooperate with the Company and its representative.
(f) The Executive shall promptly deliver to the Company copies of any written communications,
and summaries of any verbal communications, with any taxing authority regarding the Excise Tax
covered by this provision.
(g) Nothing in this Section is intended to violate the Sarbanes-Oxley Act and to the extent
that any advance or repayment obligation hereunder would do so, such obligation shall be modified
so as to make the advance a nonrefundable payment to the Executive and the repayment obligation
null and void to the extent required by such Act.