THAT NONE OF THE
FOREGOING EVENTS OR CONDITIONS WILL CONSTITUTE "GOOD REASON" UNLESS: (X)
EXECUTIVE PROVIDES THE COMPANY WITH WRITTEN OBJECTION TO THE EVENT OR CONDITION
WITHIN 90 DAYS FOLLOWING THE OCCURRENCE THEREOF, (Y) THE COMPANY DOES NOT
REVERSE OR OTHERWISE CURE THE EVENT OR CONDITION WITHIN FIFTEEN (15) DAYS OF
RECEIVING THAT WRITTEN OBJECTION, AND (Z) EXECUTIVE RESIGNS HIS EMPLOYMENT
WITHIN THIRTY (30) DAYS FOLLOWING THE EXPIRATION OF THAT CURE PERIOD; AND
PROVIDED FURTHER, THAT NOTWITHSTANDING THE FOREGOING, IF EXECUTIVE AND THE
COMPANY (OR ANY OF ITS AFFILIATES) HAVE ENTERED INTO AN EMPLOYMENT, CONSULTING
OR OTHER SIMILAR AGREEMENT THAT SPECIFICALLY DEFINES "GOOD REASON,"
"CONSTRUCTIVE DISCHARGE" OR ANY SUBSTANTIALLY SIMILAR CONCEPT, "GOOD REASON"
WILL HAVE THE MEANING OF SUCH TERM AS DEFINED IN THAT AGREEMENT.
1.2.4.
"SEVERANCE PERIOD" MEANS 18 MONTHS REDUCED BY THE
NUMBER OF FULL OR PARTIAL MONTHS (IF ANY) TRANSPIRED SINCE THE OCCURRENCE OF A
CHANGE IN CONTROL.
SECTION 2.
Avoidance of Golden Parachute Excise
Taxes. Notwithstanding any other provision of this Agreement, to the extent that
any payment, right and/or benefit otherwise due hereunder (when added to all
other payments, rights and benefits due to Executive from the Company and its
affiliates)(collectively, the "Payments" and each, a "Payment") will constitute
an "excess parachute payment" under Section 280G of the Internal Revenue Code
(the "Code") or any successor provision, that Payment will not be paid or
provided unless approved by the stockholders of the Company in a manner, and at
a time, consistent with the requirements of Section 280G(b)(5)(B) of the Code
and the regulations promulgated thereunder. The Company agrees that, if the
foregoing sentence is implicated, it will timely submit the excess Payments to
its stockholders for their approval, will recommend that its stockholders vote
in favor of those Payments and will otherwise exercise reasonable efforts to
encourage the approval of those Payments in a manner consistent with the
requirements of Section 280G(b)(5)(B) of the Code.
SECTION 3.
Miscellaneous.
3.1.
NO MITIGATION; NO OFFSET. FOLLOWING ANY
CESSATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY, EXECUTIVE WILL BE UNDER NO
OBLIGATION TO SEEK OTHER EMPLOYMENT AND THERE WILL BE NO OFFSET AGAINST AMOUNTS
DUE TO EXECUTIVE HEREUNDER ON ACCOUNT OF REMUNERATION ATTRIBUTABLE TO SUBSEQUENT
EMPLOYMENT OF EXECUTIVE BY A THIRD PARTY.
3.2.
NO LIABILITY OF OFFICERS AND DIRECTORS FOR
SEVERANCE UPON INSOLVENCY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT
AND INTENDING TO BE BOUND BY THIS PROVISION, EXECUTIVE HEREBY (A) WAIVES ANY
RIGHT TO CLAIM PAYMENT OF AMOUNTS OWED TO HIM OR HER, NOW OR IN THE FUTURE,
PURSUANT TO THIS AGREEMENT FROM DIRECTORS OR OFFICERS OF THE COMPANY IF THE
COMPANY BECOMES INSOLVENT, AND (B) FULLY AND FOREVER RELEASES AND DISCHARGES THE
COMPANY'S OFFICERS AND DIRECTORS FROM ANY AND ALL CLAIMS, DEMANDS, LIENS,
ACTIONS, SUITS, CAUSES OF ACTION OR JUDGMENTS ARISING OUT OF ANY PRESENT OR
FUTURE CLAIM FOR SUCH AMOUNTS.
3.3.
SUCCESSORS AND ASSIGNS. THIS AGREEMENT WILL
INURE TO THE BENEFIT OF AND BE BINDING UPON THE COMPANY AND EXECUTIVE AND THEIR
RESPECTIVE SUCCESSORS, EXECUTORS, ADMINISTRATORS