OR
PROVIDED TO EMPLOYEE UNDER THIS AGREEMENT, TAKEN TOGETHER WITH ANY PAYMENTS OR
BENEFITS OTHERWISE PAID OR PROVIDED TO EMPLOYEE BY COMPANY OR ANY CORPORATION
THAT IS A MEMBER OF AN "AFFILIATED GROUP" (AS DEFINED IN SECTION 1504 OF THE
CODE WITHOUT REGARD TO SECTION 1504(B) OF THE CODE) OF WHICH COMPANY IS A MEMBER
(THE "OTHER ARRANGEMENTS"), WOULD COLLECTIVELY CONSTITUTE A "PARACHUTE PAYMENT"
(AS DEFINED IN SECTION 280G(B)(2) OF THE CODE), AND IF THE NET AFTER-TAX AMOUNT
OF SUCH PARACHUTE PAYMENT TO EMPLOYEE IS LESS THAN WHAT THE NET AFTER-TAX AMOUNT
TO EMPLOYEE WOULD BE IF THE AGGREGATE PAYMENTS AND BENEFITS OTHERWISE
CONSTITUTING THE PARACHUTE PAYMENT WERE
8
LIMITED TO THREE TIMES EMPLOYEE'S "BASE AMOUNT" (AS DEFINED IN SECTION
280G(B)(3) OF THE CODE) LESS $1.00, THEN THE AGGREGATE PAYMENTS AND BENEFITS
OTHERWISE CONSTITUTING THE PARACHUTE PAYMENT SHALL BE REDUCED TO AN AMOUNT THAT
SHALL EQUAL THREE TIMES EMPLOYEE'S BASE AMOUNT, LESS $1.00.
SHOULD SUCH A
REDUCTION IN PAYMENTS AND BENEFITS BE REQUIRED, EMPLOYEE SHALL BE ENTITLED,
SUBJECT TO THE FOLLOWING SENTENCE, TO DESIGNATE THOSE PAYMENTS AND BENEFITS
UNDER THIS AGREEMENT OR THE OTHER ARRANGEMENTS THAT WILL BE REDUCED OR
ELIMINATED SO AS TO ACHIEVE THE SPECIFIED REDUCTION IN AGGREGATE PAYMENTS AND
BENEFITS TO EMPLOYEE AND AVOID CHARACTERIZATION OF SUCH AGGREGATE PAYMENTS AND
BENEFITS AS A PARACHUTE PAYMENT.
COMPANY WILL PROVIDE EMPLOYEE WITH ALL
INFORMATION REASONABLY REQUESTED BY EMPLOYEE TO PERMIT EMPLOYEE TO MAKE SUCH
DESIGNATION.
TO THE EXTENT THAT EMPLOYEE'S ABILITY TO MAKE SUCH A DESIGNATION
WOULD CAUSE ANY OF THE PAYMENTS AND BENEFITS TO BECOME SUBJECT TO ANY ADDITIONAL
TAX UNDER CODE SECTION 409A, OR IF EMPLOYEE FAILS TO MAKE SUCH A DESIGNATION
WITHIN 10 BUSINESS DAYS OF RECEIVING THE REQUESTED INFORMATION FROM COMPANY,
THEN COMPANY SHALL ACHIEVE THE NECESSARY REDUCTION IN SUCH PAYMENTS AND BENEFITS
BY FIRST REDUCING OR ELIMINATING THE PORTION OF THE PAYMENTS AND BENEFITS THAT
ARE PAYABLE IN CASH AND THEN BY REDUCING OR ELIMINATING THE NON-CASH PORTION OF
THE PAYMENTS AND BENEFITS, IN EACH CASE IN REVERSE ORDER BEGINNING WITH PAYMENTS
AND BENEFITS WHICH ARE TO BE PAID OR PROVIDED THE FURTHEST IN TIME FROM THE DATE
OF COMPANY'S DETERMINATION.
FOR PURPOSES OF THIS SECTION 6(G), A NET AFTER-TAX
AMOUNT SHALL BE DETERMINED BY TAKING INTO ACCOUNT ALL APPLICABLE INCOME, EXCISE
AND EMPLOYMENT TAXES, WHETHER IMPOSED AT THE FEDERAL, STATE OR LOCAL LEVEL,
INCLUDING THE EXCISE TAX IMPOSED UNDER SECTION 4999 OF THE CODE.
SECTION 7.
CHANGE IN CONTROL.
FOR PURPOSES OF THIS AGREEMENT, (1) THE TERM
"PERSON" MEANS ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, TRUST, COMPANY,
BUSINESS, FIRM, ASSOCIATION, ORGANIZATION, GOVERNMENTAL INSTRUMENTALITY, OTHER
ENTITY, SYNDICATE OR GROUP, (2) THE TERM "VOTING SECURITIES" SHALL MEAN, AS TO
ANY PERSON, THE THEN-OUTSTANDING SECURITIES OF OR OTHER INTERESTS IN SUCH PERSON
ENTITLED TO VOTE GENERALLY IN THE ELECTION OF DIRECTORS, TRUSTEES OR SIMILAR
MANAGERS OF SUCH PERSON, (3) THE TERM "AFFILIATE" MEANS ANY ENTITY THAT,
DIRECTLY OR INDIRECTLY, IS CONTROLLED BY, CONTROLS OR IS UNDER COMMON CONTROL
WITH, COMPANY OR ANY ENTITY IN WHICH COMPANY HAS