ONE OR MORE BENEFIT PLANS THAT
EXECUTIVE HAS OBTAINED OR INTENDS TO OBTAIN THAT PROVIDE BENEFITS ON A
SUBSTANTIALLY SIMILAR BASIS AS THE BENEFITS PROVIDED TO EXECUTIVE PRIOR TO THE
DATE OF TERMINATION (AND ACKNOWLEDGMENT FROM THE PROVIDER OF SUCH BENEFIT PLANS
THAT SUCH BENEFIT PLANS HAVE BEEN OR CAN BE OBTAINED BY EXECUTIVE ON THOSE
TERMS, INCLUDING, WITHOUT LIMITATION, AT LEAST SUBSTANTIALLY SIMILAR SCOPE OF
COVERAGE, SUBSTANTIALLY SIMILAR DEDUCTIBLES AND SUBSTANTIALLY SIMILAR
CO-PAYMENTS), THEN THE BENEFITS LUMP-SUM PAYMENT SHALL BE MADE BASED ON THE
PREMIUMS PLUS ANY OTHER ADMINISTRATIVE FEES (EXCEPT CO-PAYMENTS) CHARGED BY THE
COMPANY OFFERING SUCH PLANS.
IF THE COMPANY ELECTS TO PROVIDE EXECUTIVE WITH
THE BENEFITS LUMP-SUM PAYMENT AND IT IS DETERMINED BY THE COMPANY THAT ANY
PORTION OF THE BENEFITS LUMP-SUM PAYMENT CONSTITUTES TAXABLE WAGES FOR FEDERAL
INCOME AND/OR EMPLOYMENT TAX PURPOSES, THE COMPANY AGREES TO PAY EXECUTIVE AN
ADDITIONAL AMOUNT (THE "BENEFITS GROSS-UP PAYMENT") SUCH THAT THE NET AMOUNT
RETAINED BY EXECUTIVE FROM THE BENEFIT LUMP-SUM PAYMENT AND THE BENEFITS
GROSS-UP PAYMENT, AFTER REDUCTION FOR ANY FEDERAL, STATE AND LOCAL INCOME AND
EMPLOYMENT TAXES ON THE BENEFITS LUMP-SUM PAYMENT AND THE BENEFITS GROSS-UP
PAYMENT, SHALL EQUAL THE BENEFITS LUMP-SUM PAYMENT.
NOTWITHSTANDING THE
FOREGOING, IN THE EVENT EXECUTIVE BECOMES REEMPLOYED WITH ANOTHER EMPLOYER AND
BECOMES ELIGIBLE TO RECEIVE BENEFITS FROM SUCH EMPLOYER, THE BENEFITS DESCRIBED
HEREIN SHALL BE SECONDARY TO SUCH BENEFITS DURING THE PERIOD OF EXECUTIVE'S
ELIGIBILITY, BUT ONLY TO THE EXTENT THAT THE COMPANY REIMBURSES EXECUTIVE FOR
ANY INCREASED COST AND PROVIDES ANY ADDITIONAL BENEFITS NECESSARY TO GIVE
EXECUTIVE THE BENEFITS PROVIDED HEREUNDER; AND
(D)
ALL OUTSTANDING STOCK OPTIONS, RESTRICTED STOCK AND OTHER EQUITY BASED
AWARDS (COLLECTIVELY, "AWARDS") SHALL FULLY VEST, ALL RESTRICTIONS ON SUCH
AWARDS SHALL LAPSE AND THE MAXIMUM LEVEL OF ACHIEVEMENT OF ALL PERFORMANCE
CRITERIA WITH RESPECT TO SUCH AWARDS SHALL BE DEEMED FULLY SATISFIED.
IN THE
CASE OF
14
STOCK OPTIONS OR ANY OTHER EQUITY BASED AWARDS IN THE NATURE OF A RIGHT THAT MAY
BE EXERCISED, SUCH STOCK OPTIONS AND OTHER EQUITY BASED AWARDS SHALL REMAIN
EXERCISABLE FOR THREE YEARS AFTER THE DATE OF TERMINATION.
(B)
NON-QUALIFYING TERMINATION.
IF THE EMPLOYMENT OF EXECUTIVE
TERMINATES PURSUANT TO A NON-QUALIFYING TERMINATION, THEN THE COMPANY SHALL PAY
TO EXECUTIVE WITHIN FIVE (5) BUSINESS DAYS FOLLOWING THE DATE OF TERMINATION, A
LUMP-SUM CASH PAYMENT EQUAL TO THE SUM OF (I) EXECUTIVE'S ANNUAL BASE SALARY
PAYABLE THROUGH THE DATE OF TERMINATION; (II) BONUS AMOUNTS EARNED BY EXECUTIVE
AND DECLARED AND APPROVED BY THE BOARD; AND (III) THE CASH EQUIVALENT OF ANY
ACCRUED PAID TIME OFF; IN EACH CASE TO THE EXTENT NOT ALREADY PAID.
THE COMPANY
MAY MAKE SUCH ADDITIONAL PAYMENTS AND PROVIDE SUCH ADDITIONAL BENEFITS TO
EXECUTIVE AS THE COMPANY AND EXECUTIVE MAY AGREE IN WRITING.
6.
EXCISE TAX GROSS UP.
(A)
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IN
THE EVENT THAT IT SHALL BE DETERMINED THAT THE VESTING OF AWARDS, AGGREGATE
PAYMENTS OR DISTRIBUTIONS BY THE COMPANY OR ITS AFFILIATED COMPANIES TO OR FOR
THE BENEFIT OF EXECUTIVE,