EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the 1st day of March, 2003.
(hereinafter called the "Corporation")
OF THE FIRST PART
- and -
Kenneth C. Cancellara
(hereinafter called the "Executive")
OF THE SECOND PART
WHEREAS the Corporation, and the Executive wish to enter into this Employment Agreement which provides, among other things, that the Executive devote substantially all his time and attention during normal business hours to the performance of his duties hereunder upon the terms and conditions hereinafter set forth;
NOW THEREFORE IN CONSIDERATION of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged, the parties hereto agree as follows.
ARTICLE ONE—GENERAL DUTIES AND TERM
1.01 The Corporation hereby engages the Executive to perform the services described in Schedule A attached hereto and the Executive agrees to provide such services on the terms and conditions as herein provided. This Agreement supersedes all existing oral or written agreements between the Corporation and the Executive.
General Duties and Obligations of Executive
1.02 The Executive shall:
- well and faithfully serve the Corporation to the best of his ability;
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED IS OMITTED AND IS NOTED WITH "**".
AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
- acknowledges that his employment by the Corporation shall, unless otherwise mutually agreed to in writing, be his only occupation and that he/she will devote substantially all his working time and attention during normal business hours to the performance of his duties and the observing of all reasonable instructions given to the Executive;
- shall reasonably use his best efforts to promote the success of the business of the Corporation (the "Business") now or hereafter conducted by the Corporation; and
- shall not engage in any activity during normal working hours that would impair his ability to perform his duties or that will put the Executive in conflict with respect to such duties.
Term of Agreement
1.03 This Agreement shall continue in full force and effect indefinitely and until terminated by either the Executive or the Corporation pursuant to the terms hereof.
ARTICLE TWO—TERMINATION AND RESIGNATION
I Termination by the Corporation
A Without Just Cause
2.01 a) During the term of this Agreement, the Corporation may terminate the Executive's employment without just cause at any time upon the payment by the Corporation to the Executive of an amount (the "Severance Payment") equal to 12 months' (the "Severance Period") base salary, and including the vesting during the Severance Period of any unvested options or the payment of any other amounts or benefits. (For greater certainty and by way of example, if the Executive is terminated on January 1, the Executive would not be entitled to receive any further grant of options but would be entitled to have vested during the ensuing Severance Period any previously granted but unvested options which would have otherwise vested during the Severance Period.) The Executive shall be under no obligation to seek other employment or otherwise mitigate his lost employment during the Severance Period. The Executive shall be entitled to be considered in good faith for a pro-rated bonus for the period of his employment during the calendar year when he is terminated without just cause.
During the period consisting of the earlier of the duration of the Severance Period and the Executive's commencing alternate employment, the Executive shall continue to remain on the Corporation's medical and dental plans (provided that such is allowed by the provider of such benefits; provided further that if the plan does not allow for such continuation, the Corporation will pay to the Executive the value thereof).