OR
DEPRIVE THE EXECUTIVE OF ANY MATERIAL FRINGE BENEFIT OR PERQUISITE ENJOYED BY
THE EXECUTIVE AT THE TIME OF THE CHANGE IN CONTROL, OR THE FAILURE BY THE
COMPANY TO PROVIDE THE EXECUTIVE WITH THE NUMBER OF PAID VACATION DAYS TO WHICH
THE EXECUTIVE IS ENTITLED ON THE BASIS OF YEARS OF SERVICE WITH THE COMPANY IN
ACCORDANCE WITH THE COMPANY'S NORMAL VACATION POLICY IN EFFECT AT THE TIME OF
THE CHANGE IN CONTROL; OR
(VII)
ANY PURPORTED TERMINATION OF THE EXECUTIVE'S EMPLOYMENT WHICH IS
NOT EFFECTED PURSUANT TO A NOTICE OF TERMINATION SATISFYING THE REQUIREMENTS OF
SECTION 6.1 HEREOF; FOR PURPOSES OF THIS AGREEMENT, NO SUCH PURPORTED
TERMINATION SHALL BE EFFECTIVE.
The Executive's right to terminate the Executive's employment for Good Reason
shall not be affected by the Executive's incapacity due to physical or mental
illness.
The Executive's continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act constituting
Good Reason hereunder.
For purposes of any determination regarding the existence of Good Reason, any
claim by the Executive that Good Reason exists shall be presumed to be correct
unless the Company establishes to the Committee by clear and convincing evidence
that Good Reason does not exist.
(T)
"GROSS-UP PAYMENT" SHALL HAVE THE MEANING SET FORTH IN SECTION 5.2
HEREOF.
(U)
"INCUMBENT BOARD" HAS THE MEANING SET FORTH IN SECTION 14(F)(II)
HEREOF.
(V)
"NOTICE OF TERMINATION" SHALL HAVE THE MEANING SET FORTH IN
SECTION 6.1 HEREOF.
(W)
"OUTSTANDING COMPANY COMMON STOCK" HAS THE MEANING SET FORTH IN
SECTION 14(F)(I) HEREOF.
(X)
"OUTSTANDING COMPANY VOTING STOCK" HAS THE MEANING SET FORTH IN
SECTION 14(F)(I) HEREOF.
(Y)
"PAYMENT" SHALL MEAN ANY PAYMENT OR DISTRIBUTION IN THE NATURE OF
COMPENSATION (WITHIN THE MEANING OF SECTION 280G(B)(2) OF THE CODE) TO OR FOR
THE BENEFIT OF THE EXECUTIVE, WHETHER PAID OR PAYABLE PURSUANT TO THIS AGREEMENT
OR OTHERWISE.
15
(Z)
"PERSON" SHALL HAVE THE MEANING GIVEN IN SECTION 3(A)(9) OF THE
EXCHANGE ACT, AS MODIFIED AND USED IN SECTIONS 13(D) AND 14(D) THEREOF, EXCEPT
THAT SUCH TERM SHALL NOT INCLUDE (I) THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(II) A TRUSTEE OR OTHER FIDUCIARY HOLDING SECURITIES UNDER AN EMPLOYEE BENEFIT
PLAN OF THE COMPANY OR ANY OF ITS AFFILIATES, (III) AN UNDERWRITER TEMPORARILY
HOLDING SECURITIES PURSUANT TO AN OFFERING OF SUCH SECURITIES, OR (IV)A
CORPORATION OWNED, DIRECTLY OR INDIRECTLY, BY THE STOCKHOLDERS OF THE COMPANY IN
SUBSTANTIALLY THE SAME PROPORTIONS AS THEIR OWNERSHIP OF STOCK OF THE COMPANY.
(AA)
"SEVERANCE PAYMENTS" SHALL HAVE THE MEANING SET FORTH IN SECTION 5.1
HEREOF.
(BB)
"TERM" SHALL MEAN THE PERIOD OF TIME DESCRIBED IN SECTION 2 HEREOF.
(CC)
"UNDERPAYMENT" SHALL HAVE THE MEANING SET FORTH IN SECTION 5.2(B)
HEREOF.
15.
SECTION 409A OF THE CODE.
TO THE EXTENT THAT ANY PAYMENT OR
BENEFIT UNDER THIS AGREEMENT WOULD BE DEEMED TO BE DEFERRED COMPENSATION SUBJECT
TO THE REQUIREMENTS OF SECTION 409A OF THE CODE THAT DOES NOT COMPLY WITH SUCH
REQUIREMENTS, THE COMPANY AND THE EXECUTIVE