APPLICABLE PLANS AND PROGRAMS, AND PROVIDED
FURTHER, THAT SUCH BENEFITS WOULD NOT BE TAXABLE TO THE EMPLOYEE OR SUBJECT TO
SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
IN
THE EVENT THAT THE EMPLOYEE'S PARTICIPATION IN ANY SUCH PLAN OR PROGRAM IS
PROHIBITED, THE COMPANY SHALL, AT ITS EXPENSE, ARRANGE TO PROVIDE THE EMPLOYEE
WITH BENEFITS SUBSTANTIALLY SIMILAR TO THOSE WHICH THE EMPLOYEE WOULD OTHERWISE
HAVE BEEN ENTITLED TO RECEIVE UNDER SUCH PLANS AND PROGRAMS FROM WHICH HIS
CONTINUED PARTICIPATION IS PROHIBITED.
IF THE COMPANY ARRANGES TO PROVIDE THE
EMPLOYEE AND COVERED DEPENDENTS WITH LIFE AND HEALTH INSURANCE BENEFITS, THOSE
BENEFITS WILL BE REDUCED TO THE EXTENT COMPARABLE BENEFITS ARE RECEIVED BY, OR
MADE AVAILABLE TO, THE EMPLOYEE (AT NO GREATER COST TO THE EMPLOYEE) BY ANOTHER
EMPLOYER DURING THE THREE (3) YEAR PERIOD FOLLOWING THE EMPLOYEE'S DATE OF
TERMINATION.
THE EMPLOYEE MUST REPORT TO THE COMPANY ANY SUCH BENEFITS THAT HE
RECEIVES OR THAT ARE MADE AVAILABLE.
IN LIEU OF THE BENEFITS DESCRIBED IN THIS
SECTION 10(A)(V), THE COMPANY, IN ITS SOLE DISCRETION, MAY ELECT TO PAY TO THE
EMPLOYEE A LUMP SUM CASH PAYMENT EQUAL TO THE MONTHLY PREMIUMS THAT WOULD HAVE
BEEN PAID BY THE COMPANY TO PROVIDE SUCH BENEFITS TO THE EMPLOYEE FOR EACH MONTH
SUCH COVERAGE IS NOT PROVIDED UNDER THIS SECTION 10(A)(V).
NOTHING IN THIS
SECTION 10(A)(V) WILL EXTEND THE COBRA CONTINUATION COVERAGE PERIOD.
6
The Company shall provide the Employee with advance written notice of the date
of the first anniversary of any Change in Control.
(B)
TERMINATION BY THE COMPANY FOR CAUSE OR BY
THE EMPLOYEE WITHOUT GOOD REASON.
IF THE EMPLOYEE'S EMPLOYMENT IS TERMINATED BY
THE COMPANY FOR CAUSE OR BY THE EMPLOYEE WITHOUT GOOD REASON, THE COMPANY'S ONLY
OBLIGATION UNDER THIS AGREEMENT SHALL BE PAYMENT OF ANY ACCRUED OBLIGATIONS.
(C)
TERMINATION DUE TO DEATH OR DISABILITY.
IF
THE EMPLOYEE'S EMPLOYMENT IS TERMINATED DUE TO DEATH OR DISABILITY, THE COMPANY
SHALL PAY TO THE EMPLOYEE (OR TO THE EMPLOYEE'S ESTATE OR PERSONAL
REPRESENTATIVE IN THE CASE OF THE EMPLOYEE'S DEATH), WITHIN THIRTY (30) BUSINESS
DAYS AFTER THE DATE OF TERMINATION, (I) ANY ACCRUED OBLIGATIONS AND (II) A
PRORATED ANNUAL BONUS BASED ON (A) THE TARGET ANNUAL BONUS OPPORTUNITY IN THE
YEAR IN WHICH THE DATE OF TERMINATION OCCURS OR THE PRIOR YEAR IF NO TARGET
ANNUAL BONUS OPPORTUNITY HAS YET BEEN DETERMINED AND (B) THE FRACTION OF THE
YEAR THE EMPLOYEE WAS EMPLOYED.
(D)
DEFINITION OF CHANGE IN CONTROL.
FOR
PURPOSES OF THIS AGREEMENT, THE TERM "CHANGE IN CONTROL" SHALL MEAN THAT THE
CONDITIONS SET FORTH IN ANY ONE OF THE FOLLOWING SUBSECTIONS SHALL HAVE BEEN
SATISFIED:
(I)
THE ACQUISITION, DIRECTLY OR INDIRECTLY,
BY ANY "PERSON" (WITHIN THE MEANING OF SECTION 3(A)(9) OF THE SECURITIES AND
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT") AND USED IN SECTIONS
13(D) AND 14(D) THEREOF) OF "BENEFICIAL OWNERSHIP" (WITHIN THE MEANING OF
RULE 13D-3 OF THE EXCHANGE ACT) OF SECURITIES OF THE COMPANY POSSESSING MORE
THAN FIFTY