Exhibit 10(l)


 


SUPERIOR TELECOM INC.


CHANGE
IN CONTROL


SEVERANCE
PAY PLAN


 


(Effective
as of April 10, 2003)


 


INTRODUCTION


 


The purpose of the Plan is to enable the Company to offer certain
protections to a selected group of key employees of the Employer if their
employment is terminated without Cause or for Good Reason in connection with a
Change in Control.  Capitalized terms
and phrases used herein shall have the meanings ascribed thereto in Article I.


 


ARTICLE I.

DEFINITIONS


 


1.1           “Affiliate” shall mean each of the following: (i) any
Subsidiary; (ii) any Parent; (iii) any corporation, trade or business
(including, without limitation, a partnership or limited liability company)
which is directly or indirectly controlled 50% or more (whether by ownership of
stock, assets or an equivalent ownership interest or voting interest) by the
Company or one of its Affiliates; and (iv) any other entity in which the
Company or any of its Affiliates has a material equity interest and which is
designated as an “Affiliate” by resolution of the Committee.


 


1.2           “Applicable Percentage” shall mean the
percentage set forth in Appendix A hereto.


 


1.3           “Base Pay” shall mean the Participant’s annual base salary
from the Employer payable at the rate applicable to the Participant on the
Effective Date.  Base Pay shall be
determined as reflected on the Employer’s payroll records and shall not include
bonuses, overtime pay, shift premiums, commissions, employer contributions for
benefits or other additional compensation. 
For purposes hereof, a Participant’s Base Pay shall include (i) any
salary reduction contributions made on his or her behalf to any plan of the
Employer under Section 125, 132(f) or 401(k) of the Code and (ii) compensation
deferred by the Participant under any deferred compensation plan of the
Employer.


 


1.4           “Board” shall mean the board of directors of the Company
from time to time.


 


1.5           “Cause” shall mean (with regard to a Participant’s
termination of employment with the Employer): 
(A) a Participant’s gross negligence or willful misconduct with regard
to the Employer or its assets; (B) a Participant’s misappropriation or fraud
with regard to the Employer or its assets (other than good-faith expense
account disputes); (C) a Participant’s conviction of, or the pleading of guilty
or nolo contendere to, a felony or criminal offense punishable by a term of
imprisonment (other than a traffic violation); or (D) a Participant’s material
and willful refusal to perform services (for any reason other than illness or
incapacity), which refusal continues more than 30 days after written notice
from the Employer to the Participant setting forth the conduct constituting the
breach.  A termination for Cause shall
mean


 

















 


a termination
by the Company effected by written notice given within 90 days of the
occurrence of the Cause event.


 


1.6           “Change in Control” shall mean the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended), which
together with its affiliates, did not, as of March 3, 2003, hold (legally or
beneficially) secured debt obligations of the Debtors in excess of $1 million,
by sale, purchase, merger, reorganization or otherwise of (i) prior to or
within six months after the Plan Effective Date, all or substantially all of
the assets of the Debtors, (ii) at least 42.5% of the equity of the reorganized
Debtors within six months after the Plan Effective Date, or (iii) existing debt
obligations of the Debtors prior to the Plan Effective Date which are
convertible into at least 42.5% of the equity of the reorganized Debtors upon
the Plan Effective Date; provided, however, in the event of a transaction
described in subsection (iii), the occurrence of such transaction shall be the
date of the acquisition even though the determination of whether such
acquisition triggers a Change in Control is not made until the Plan Effective
Date or another subsequent date.  With
respect to a Participant primarily employed in the Company’s OEM Group (an “OEM
Participant”) or the Company’s Communications Group (a “Communications
Participant”), a Change in Control shall also mean the occurrence of the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended), which
together with its affiliates, did not, as of March 3, 2003, hold secured debt
obligations of the Debtors in excess of $1 million, by sale, purchase, merger,
reorganization or otherwise of (1) prior to or within six months after the Plan
Effective Date, all or substantially all of the assets of the Company’s OEM
Group (solely with respect to any OEM Participant) or the Company’s
Communications Group (solely with respect any Communications Participant) or
(2) prior to or within six months after the Plan Effective Date, all of the
outstanding voting securities of an entity holding all or substantially all of
the assets of the Company’s OEM Group (solely with respect to any OEM
Participant) or the Company’s Communications Group (solely with respect any
Communications Participant).  Only one
Change in Control may occur under this Plan with respect to each Participant.


 


1.7           “Code” shall mean the Internal Revenue Code of 1986, as
amended.


 


1.8           “Committee” shall mean a committee appointed by the Board
from time to time to administer the Plan. 
Notwithstanding the foregoing, if, and to the extent that no Committee
exists which has the authority to administer the Plan, the functions of the
Committee shall be exercised by the Board and all references herein to the
Committee shall be deemed to be references to the Board.


 


1.9           “Company” shall mean Superior TeleCom Inc. and any
successors as provided in Article V hereof.


 


1.10         “Debtors” shall mean the Company; Superior
Telecommunications Inc.; Superior Telecommunications Realty Company; Essex
International Inc.; Essex Group, Inc., a Michigan corporation; Superior Essex
Realty Company; Active Industries, Inc.; Diamond Wire & Cable Co.; Essex
Funding, Inc.; Essex Services, Inc.; Essex Canada Inc.; Essex Technology, Inc.;


 


2

















 


Essex Wire
Corporation; Essex Group, Inc., a Delaware corporation; Essex Group Mexico Inc.
and Essex Mexico Holdings, L.L.C.


 


1.11         “Disability” shall mean a Participant’s disability that
would qualify as such under the Employer’s long-term disability plan without
regard to any waiting periods set forth in such plan.


 


1.12         “Effective Date” shall mean April 10, 2003.


 


1.13         “Employer” shall mean the Company and any Affiliate.


 


1.14         “ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


1.15         “Good Reason” shall mean (i) any material
diminution in the Participant’s titles, duties or responsibilities from that
which exists on the Effective Date and, to the extent that the Participant’s
titles, duties or responsibilities are increased between the Effective Date and
a Change in Control, from that which exists immediately prior to a Change in
Control, excluding for this purpose isolated and inadvertent actions not taken
in bad faith and remedied by the Employer promptly after the Employer receives
notice from the Participant; (ii) relocation of the Participant’s principal
business location to an area outside a 50 mile radius of its current location;
(iii) any reduction in any part of the Participant’s compensation (including
Base Pay and Target Performance Bonus) or a substantial reduction in the
benefits provided to the Participant or any failure to timely pay any part of
the Participant’s compensation (including Base Pay and Target Performance
Bonus) or any benefits due under any benefit plan, program or arrangement; or
(iv) the failure of the Company to receive written notice at least five (5)
business days prior to the anticipated closing date of the transaction giving
rise to a Change in Control from the successor to all or a substantial portion
of the Company’s business and/or assets that such successor is willing as of
the closing to assume and agree to perform the Company’s obligations under this
Plan in the same manner and to the same extent that the Company is hereby
required to perform.


 


1.16         “Parent” shall mean any parent corporation
of the Company within the meaning of Section 424(e) of the Code.


 


1.17         “Participant” mean each key employee of the Employer
selected by the Committee in its sole discretion and designated as a
Participant on Appendix A hereto.  No
more than seven (7) individuals shall be designated as Participants in the
Plan.


 


1.18         “Plan” shall mean the Superior TeleCom Inc. Change in
Control Severance Pay Plan.


 


1.19         “Plan Effective Date” shall mean the date a
confirmed plan of reorganization for the Company becomes effective.


 


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1.20         “Severance Benefit” shall mean a severance
benefit calculated in accordance with Section 2.1 below.


 


1.21         “Subsidiary” shall mean any corporation
that is defined as a subsidiary corporation in Section 424(f) of the Code.


 


1.22         “Target Performance Bonus” shall mean the
Participant’s target performance bonus set forth in Appendix A hereto.


 


ARTICLE II.

BENEFITS


 


2.1           Eligibility for Benefits.  Upon the Participant’s termination of
employment by the Employer without Cause or by the Participant for Good Reason
during the period commencing on the date of the Change in Control and ending on
the first anniversary thereof then, subject to Sections 2.4 and 2.5 below, the
Participant shall be entitled to a Severance Benefit under the Plan equal to
the Applicable Percentage multiplied by the sum of the Participant’s Base Pay
and Target Performance Bonus.  The
Severance Benefit under the Plan shall be in lieu of any benefit under the
Superior TeleCom Inc. Severance Pay Plan and by accepting any payment hereunder,
a Participant forfeits all rights under the Superior TeleCom Inc. Severance Pay
Plan.  A Participant shall not be
entitled to a Severance Benefit if the Participant’s employment is terminated
(i) by the Employer for Cause, (ii) by the Participant without Good Reason, or
(iii) on account of the Participant’s retirement, death or Disability.  Notwithstanding anything herein to the
contrary, the maximum aggregate amount of Severance Benefits paid under the
Plan shall not exceed $4,340,000.


 


2.2           Form of Benefit.  Any Participant entitled to a Severance
Benefit pursuant to Sections 2.1 shall receive such benefit in the form of a
lump sum payable in cash, for payments arising pursuant to Section 2.1(a),
within 5 business days (or at such earlier time as required by applicable law)
following a termination of employment by the Employer without Cause or by the
Participant for Good Reason or, for payments arising pursuant Section 2.1(b),
on or before the consummation of the Change in Control.


 


2.3           Excise Tax.  In the event that the Participant becomes entitled to payments
and/or benefits which would constitute “parachute payments” within the meaning
of Section 280G(b)(2) of the Code, the provisions of Appendix B shall apply.


 


2.4           No Duty to Mitigate/Set-off.  No Participant entitled to receive a Severance
Benefit hereunder shall be required to seek other employment or to attempt in
any way to reduce any amounts payable to him or her pursuant to this Plan.  Further, the amount of the Severance Benefit
payable hereunder shall not be reduced by any compensation earned by the
Participant as a result of employment by another employer or otherwise.  Except as provided herein, the amounts
payable hereunder shall not be subject to setoff, counterclaim, recoupment,
defense or other right which the Employer may have against the Participant or
others, including without limitation, any severance or termination benefits
provided under any other agreement, plan, program or arrangement maintained or
sponsored by the Employer.  Notwithstanding
the 


 


4

















 


foregoing, if
any termination payments made to a Participant by the Employer are related to
an actual or potential liability under the Worker Adjustment and Retraining
Notification Act (WARN) or similar law, such amounts shall reduce (offset) the
Participant’s Severance Benefit under this Plan.  In the event of the Participant’s breach of any provision
hereunder, including without limitation, Sections 2.4 and 2.5, the Company
shall be entitled to recover any payments previously made to the Participant
hereunder.


 


2.5           Release Required.  Any amounts payable pursuant to this Plan
shall only be payable if the Participant delivers to the Company a release of
all claims of any kind whatsoever that the Participant has or may have against
the Employer and its affiliates and their officers, directors and employees
known or unknown as of the date of his or her termination of employment (other
than claims to payments specifically provided hereunder, claims under COBRA,
claims to vested accrued benefits under the Employer’s tax-qualified employee
benefit plans, claims for reimbursement under the Company’s executive medical
reimbursement program for any unreimbursed medical expenses incurred on or
before the Participant’s date of termination, claims for unreimbursed business
expenses in accordance with the Company’s policy or rights of indemnification
or contribution to which the Participant was entitled under the Company’s
By-laws, the Company’s Certificate of Incorporation or otherwise with regard to
the Participant’s service as an employee, officer or director of the Company)
occurring up to the release date in such form as reasonably requested by the
Company.


 


ARTICLE III.

FUNDING


 


This Plan shall be funded out of the general assets of the Company as
and when benefits are payable under this Plan. 
All Participants shall be solely unsecured creditors of the Company and,
if a bankruptcy proceeding of the Company is pending, the Participants shall be
solely unsecured creditors of the Company with administrative priority.  If the Company decides in its sole
discretion to establish any advance accrued reserve on its books against the
future expense of benefits payable hereunder, or if the Company decides in its
sole discretion to fund a trust under this Plan, such reserve or trust shall
not under any circumstances be deemed to be an asset of this Plan.


 


ARTICLE IV.

ADMINISTRATION OF THE PLAN


 


4.1           Plan Administrator.  The general administration of the Plan on
behalf of the Company (as plan administrator under Section 3(16)(A) of ERISA)
shall be placed with the Committee.


 


4.2           Reimbursement of Expenses of Plan Committee.  The Company shall pay or reimburse the
members of the Committee for all reasonable expenses incurred in connection
with their duties hereunder.


 


4.3           Action by the Plan Committee.  Decisions of the Committee shall be made by
a majority of its members attending a meeting at which a quorum is present
(which meeting may


 


5

















 


 


be held telephonically),
or by written action in accordance with applicable law.  Subject to the terms of this Plan and
provided that the Committee acts in good faith, the Committee shall have the
authority to determine a Participant’s participation and benefits under the
Plan and to interpret and construe the provisions of the Plan.


 


4.4           Delegation of Authority.  The Committee may delegate any and all of
its powers and responsibilities hereunder to other persons by formal resolution
filed with and accepted by the Board. 
Any such delegation shall not be effective until it is accepted by the
Board and the persons designated and may be rescinded at any time by written
notice from the Committee to the person to whom the delegation is made.


 


4.5           Retention of Professional Assistance.  The Committee may employ such legal counsel,
accountants and other persons as may be required in carrying out its work in
connection with the Plan.


 


4.6           Accounts and Records.  The Committee shall maintain such accounts
and records regarding the fiscal and other transactions of the Plan and such
other data as may be required to carry out its functions under the Plan and to
comply with all applicable laws.


 


4.7           Claims/Disputes Procedure.


 


(a)           Any
claim by a Participant or beneficiary (“Claimant”) with respect to eligibility,
participation, contributions, benefits or other aspects of the operation of the
Plan shall be made in writing to the Committee. The Committee shall provide the
Claimant with the necessary forms and make all determinations as to the right
of any person to a disputed benefit.  If
a Claimant is denied benefits under the Plan, the Committee or its designee
shall notify the Claimant in writing of the denial of the claim within 90 days
(such period may be extended to 180 days) after the Plan receives the claim,
provided that in the event of special circumstances such period may be
extended.


 


(b)           If
the initial 90 day period is extended, the Committee or its designee shall,
within 90 days of receipt of the claim, notify the Claimant in writing of such
extension.  The written notice of
extension will indicate the special circumstances requiring the extension of
time and provide the date by which the Committee expects to make a
determination with respect to the claim. 
If the extension is required due to the Claimant’s failure to submit
information necessary to decide the claim, the period for making the
determination will be tolled from the date on which the extension notice is
sent to the Claimant until the earlier of (i) the date on which the Claimant
responds to the Plan’s request for information or (ii) expiration of the 45 day
period commencing on the date that the Claimant is notified that the requested
additional information must be provided. 
If notice of the denial of a claim is not furnished within the required
time period described herein, the claim shall be deemed denied as of the last
day of such period.


 


(c)           If
the claim is wholly or partially denied, the notice to the Claimant shall set
forth:


 


6

















 


(i)            the specific reason or reasons for the
denial;


 


(ii)           specific reference to pertinent Plan
provisions upon which the denial is based;


 


(iii)          a description of any additional material or
information necessary for the Claimant to perfect the claim and an explanation
of why such material or information is necessary;


 


(iv)          appropriate information as to the steps to be
taken and the applicable time limits if the Claimant wishes to submit the
adverse determination for review; and


 


(v)           a statement of the Claimant’s right to bring
a civil action under            Section
502(a) of ERISA following an adverse determination on review (collectively, the
“Notice Requirements”).


 


(d)           If
the claim has been denied, the Claimant may submit the claim for review.  Any request for review of a claim must be
made in writing to the Committee no later than 60 days after the Claimant
receives notification of denial or, if no notification was provided, the date
the claim is deemed denied.  The claim
will then be reviewed by the Committee. 
The Claimant or his duly authorized representative may:


 


(i)            upon request and free of charge, be
provided with access to, and copies of, relevant documents, records, and other
information relevant to the Claimant’s claim; and


 


(ii)           submit written comments, documents, records,
and other information relating to the claim. 
The review of the claim determination shall take into account all
comments, documents, records, and other information submitted by the Claimant
relating to the claim, without regard to whether such information was submitted
or considered in the initial claim determination.


 


(e)           The
decision of the Committee shall be made within 60 days (such period may be
extended to 120 days)  after receipt of
the Claimant’s request for review, unless special circumstances require an
extension.


 


(f)            If
the initial 60 day period is extended, the Committee or its designee shall,
within 60 days of receipt of the claim, notify the Claimant in writing of such
extension.  The written notice of
extension will indicate the special circumstances requiring the extension of
time and provide the date by which the Committee expects to make a
determination with respect to the claim. 
If the extension is required due to the Claimant’s failure to submit
information necessary to decide the claim, the period for making the
determination will be tolled from the date on which the extension notice is
sent to the Claimant until the earlier of (i) the date on which the Claimant
responds to the


 


7

















 


Plan’s request for information or (ii) expiration of the 45 day period
commencing on the date that the Claimant is notified that the requested
additional information must be provided. If notice of the denial of a claim is
not furnished within the required time period described herein, the claim shall
be deemed denied as of the last day of such period.


 


(g)           If
an extension of time is required, the Claimant shall be notified in writing of
such extension.  The written notice of
extension will indicate the special circumstances requiring the extension of
time and the date by which the Committee expects to make a determination with
respect to the claim.  If the extension
is required due to the Claimant’s failure to submit information necessary to
decide the claim on review, the period for making the determination will be
tolled from the date on which the extension notice is sent to the Claimant
until the earlier of (i) the date on which the Claimant responds to the Plan’s request
for information or (ii) expiration of the 45-day period commencing on the date
that the Claimant is notified that the requested additional information must be
provided.  In any event, a decision
shall be rendered not later than 120 days after receipt of the request for
review.  If notice of the decision upon
review is not furnished within the required time period described herein, the
claim on review shall be deemed denied as of the last day of such period.


 


(h)           The
Committee’s decision on the Claimant’s claim for review will be communicated to
the Claimant in writing.  If the claim
on review is denied, the notice to the Claimant shall provide a statement that
the Claimant is entitled to receive, upon request and free of charge,
reasonable access to, and copies of, all documents, records and other
information relevant to the claim, and also set forth the Notice Requirements
(other than subsection (c)(iv)).


 


(i)            The
claims procedures set forth in this section are intended to comply with U.S.
Department of Labor Regulation § 2560.503-1 and should be construed in
accordance with such regulation.  In no
event shall it be interpreted as expanding the rights of Claimants beyond what
is required by U.S. Dept. of Labor § 2560.503-1.


 


(j)            A
Claimant shall not be required to exhaust all administrative remedies under
this Section 4.7 prior to commencing any action in Federal court.


 


4.8           Indemnification.  The Committee, its members and any person
designated pursuant to Section 4.4 above shall not be liable for any action or
determination made in good faith with respect to the Plan.  The Company shall, to the extent permitted
by law, by the purchase of insurance or otherwise, indemnify and hold harmless
each member of the Committee and each director, officer and employee of the
Company for liabilities or expenses they and each of them incur in carrying out
their respective duties under this Plan, other than for any liabilities or
expenses arising out of such individual’s willful misconduct or fraud.


 


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ARTICLE V.

AMENDMENT AND TERMINATION


 


The Company reserves the right to amend or terminate, in whole or in
part, any or all of the provisions of this Plan at any time, provided that in
no event shall any amendment reducing the benefits provided hereunder or any
Plan termination be effective before the sixth business day following the
eighteen-month anniversary of the Plan Effective Date.


 


ARTICLE VI.

SUCCESSORS


 


For purposes of this Plan, the Company shall include any and all
successors and assignees, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all the business or assets
of the Company and such successors and assignees shall perform the Company’s
obligations under this Plan, in the same manner and to the same extent that the
Company would be required to perform if no such succession or assignment had
taken place.  In such event, the term
“Company”, as used in this Plan, shall mean the Company, as hereinbefore
defined and any successor or assignee to the business or assets which by reason
hereof becomes bound by the terms and provisions of this Plan.


 


ARTICLE VII.

MISCELLANEOUS


 


7.1           Rights of Participants.  Nothing herein contained shall be held or
construed to create any liability or obligation upon the Employer to retain any
Participant in its service.  All
Participants shall remain subject to discharge or discipline to the same extent
as if this Plan had not been put into effect.


 


7.2           Governing Law.  This Plan shall be governed by the laws of
the State of New Jersey (without reference to rules relating to conflicts of
law).


 


7.3           Withholding.  The Employer shall have the right to make such provisions as it
deems necessary or appropriate to satisfy any obligations it may have to
withhold federal, state or local income or other taxes incurred by reason of
payments pursuant to this Plan.


 


7.4           Severability.  In case any provision of this Plan be deemed or held to be
unlawful or invalid for any reason, such fact shall not adversely affect the
other provisions of this Plan unless such determination shall render impossible
or impracticable the functioning of this Plan, and in such case, an appropriate
provision or provisions shall be adopted so that this Plan may continue to function
properly.


 


7.5           Assignment and Alienation.  The benefits payable to the Participant
under the Plan shall not be subject to alienation, transfer, assignment,
garnishment, execution or levy of any kind and any attempt to cause any
benefits to be so subjected shall not be recognized.


 


7.6           Communications.  All announcements, notices and other
communications regarding this Plan will be made by the Employer in writing.


 


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7.7           ERISA Plan.  The Plan is intended to be a “top hat” pension benefit plan
within the meaning of U.S. Department of Labor Regulation Section 2520.104-24.


 


7.8           Entire Agreement.  Except for the Superior TeleCom Inc.
Severance Pay Plan, this Plan sets forth the entire understanding of the Employer
with respect to the subject matter hereof and supersedes all existing severance
and change in control plans, agreements and understandings (whether oral or
written) between the Employer and the Participants with respect to the subject
matter herein.


 


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APPENDIX
A


 


Applicable
Percentages


 


	
  Employee

  	
   

  	
  Applicable
  Percentage

  	
   

  	
  Target
  Performance Bonus

  	
   

  
	
  David Aldridge

  	
   

  	
  220

  	
  %

  	
  65% x Base Pay

  	
   

  
	
  Justin Deedy, Jr.

  	
   

  	
  220

  	
  %

  	
  65% x Base Pay

  	
   

  
	
  H. Patrick Jack

  	
   

  	
  220

  	
  %

  	
  60% x Base Pay

  	
   

  
	
  Stewart Wahrsager

  	
   

  	
  100

  	
  %

  	
  45% x Base Pay

  	
   

  
	
  Tracye Gilleland

  	
   

  	
  150

  	
  %

  	
  40% x Base Pay

  	
   

  
	
  David Siegel

  	
   

  	
  100

  	
  %

  	
  35% x Base Pay

  	
   

  
	
  James Cassella

  	
   

  	
  100

  	
  %

  	
  35% x Base Pay

  	
   

  



 

















 


APPENDIX
B


 


Golden
Parachutes


 


 


(a)           In
the event any payment that is either received by the Participant or paid by the
Employer on his or her behalf or any property or any other benefit provided to
him or her under this Plan or under any other plan, arrangement or agreement
with the Employer or any other person whose payments or benefits are treated as
contingent on a change of ownership or control of the Company (or in the
ownership of a substantial portion of the assets of the Company) or any person
affiliated with the Company or such person (but only if such payment or other
benefit is in connection with the Participant’s employment by the Company)
(collectively the “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), then the Participant shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after payment by the Participant of all taxes (including any interest
or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the
Participant retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Company Payments. 
Notwithstanding the foregoing, if it shall be determined that the
Participant is entitled to a Gross-Up Payment, but that the Company Payments do
not exceed 110% of the greatest amount (the “Reduced Amount”) that could be
paid to the Participant such that the receipt of Company Payments would not
give rise to any Excise Tax, then no Gross-Up Payment shall be made to the
Participant and the Company Payments, in the aggregate, shall be reduced to the
Reduced Amount.


 


(b)           For
purposes of determining whether any of the Company Payments will be subject to
the Excise Tax and the amount of such Excise Tax, (i) the Company 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 Code 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
opinion of the Company’s independent certified public accountants appointed prior
to any Change in Control or tax counsel selected by such accountants or the
Company (the “Accountants”) such Company Payments (in whole or in part) either
do not constitute “parachute payments,” 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 (ii) 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.  In the event
that the Accountants are serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, the Participant may appoint
another nationally recognized accounting firm to make the determinations
hereunder (which accounting firm shall then be referred to as the “Accountants”
hereunder).  All determinations
hereunder shall be made by the Accountants which shall provide detailed
supporting calculations both to the Company and the Participant at such time as
it is requested by the Company or the Participant.  The determination of the Accountants shall be binding upon the
Company and the Participant.


 

















 


(c)           The
Company shall be responsible for all charges of the Accountant.