Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
Deferred Compensation Plan Amendment
On December 3, 2008, the Compensation Committee of our Board of Directors
approved certain amendments to our Amended and Restated Deferred Compensation
Plan, effective as of January 1, 2009. Our directors and senior level employees,
including our Named Executive Officers, are eligible to participate in the
Deferred Compensation Plan. The Deferred Compensation Plan was amended primarily
to bring it into compliance with Section 409A of the Internal Revenue Code and
regulations promulgated thereunder, and to permit a special 2008 transition
distribution election as permitted by IRS Notice 2007-86, issued in connection
with Section 409A.
The foregoing description of the Amended and Restated Deferred Compensation Plan
does not purport to be complete and is qualified in its entirety by reference to
the Amended and Restated Deferred Compensation Plan filed as Exhibit 10.1 of
this Report and incorporated herein by reference.
Amendment to Employee Retention Agreements
The Compensation Committee of our Board of Directors has also approved an
amendment to our outstanding Employee Retention Agreements, as required to bring
them into compliance with Section 409A of the Internal Revenue Code and
regulations promulgated thereunder.
We enter into Employee Retention Agreements with each of our executive officers
(including our Named Executive Officers) and other key employees providing for
severance benefits in the event of termination within 24 months following a
change in control (as defined in each agreement) that was approved by the Board
of Directors. The Employee Retention Agreements also provide for severance
benefits if (1) we terminate the employee (other than termination for "cause"),
or (2) the employee terminates his or her employment for "good reason" (as
defined in each agreement) within 24 months after a change in control (as
defined in each agreement) that was approved by the Board of Directors. The
Employee Retention Agreements also provide for severance benefits if an employee
is terminated (other than for "cause") within 12 months after a change in
control that was not approved by the Board of Directors. The Employee Retention
Agreements do not provide for severance benefits in the event of an employee's
death or disability. They provide for the following severance benefits: (1) a
lump-sum payment equal to 200% (299% in the case of executive officers) of the
sum of the employee's annual base salary plus the total cash bonuses paid or
awarded to him or her in the four fiscal quarters preceding his or her
termination, and (2) the continuation of life, disability, dental, accident and
group health insurance benefits for a period of 24 months.
The foregoing description of the Employee Retention Agreements does not purport
to be complete and is qualified in its entirety by reference to the Form of
Employee Retention Agreement, as amended, incorporated by reference in this
Report, and the Form of Amendment to Employee Retention Agreement, filed as
Exhibit 10.3 of this Report and incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On December 3, 2008, the Company's Board of Directors approved the filing of
Articles of Amendment to the Company's Articles of Organization eliminating from
the Company's Articles of Organization all references to the Series A Junior
Participating Preferred Stock, which had previously been designated. On
December 8, 2008, the Company filed such Articles of Amendment with the
Secretary of State of the Commonwealth of Massachusetts. A copy of the Articles
of Amendment, which became effective at 3:49 p.m. on December 8, 2008, is filed
as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
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