PAYABLE OR PROVIDED TO EXECUTIVE UNDER SECTIONS
4(A)(I)(B), 4(A)(II) AND 4(B) SHALL NOT BE PAYABLE OR PROVIDED UNLESS AND UNTIL
THE COMPANY HAS RECEIVED FROM EXECUTIVE A SIGNED RELEASE OF EMPLOYMENT-RELATED
CLAIMS AGAINST THE COMPANY, ITS SUBSIDIARIES AND THEIR RESPECTIVE EMPLOYEES,
OFFICERS AND DIRECTORS, IN A FORM PREPARED BY THE COMPANY AND REASONABLY
ACCEPTABLE TO EXECUTIVE.
(D)
NONQUALIFYING TERMINATION.
IF DURING THE
TERMINATION PERIOD THE EMPLOYMENT OF EXECUTIVE SHALL TERMINATE OTHER THAN BY
REASON OF A QUALIFYING TERMINATION, THEN THE COMPANY SHALL PAY TO EXECUTIVE
WITHIN THIRTY (30) DAYS FOLLOWING THE DATE OF TERMINATION, A LUMP-SUM CASH
AMOUNT EQUAL TO THE SUM OF EXECUTIVE'S BASE SALARY THROUGH THE DATE OF
TERMINATION AND ANY BONUS AMOUNTS WHICH HAVE BECOME PAYABLE, TO THE EXTENT NOT
THERETOFORE PAID OR DEFERRED, AND ANY ACCRUED VACATION PAY, TO THE EXTENT NOT
THERETOFORE PAID.
THE COMPANY MAY MAKE SUCH ADDITIONAL PAYMENTS, AND PROVIDE
SUCH ADDITIONAL BENEFITS, TO EXECUTIVE AS THE COMPANY AND EXECUTIVE MAY AGREE IN
WRITING, OR TO WHICH EXECUTIVE MAY BE ENTITLED UNDER THE COMPENSATION AND
BENEFIT PLANS, POLICIES, AND ARRANGEMENTS OF THE COMPANY.
4.
CERTAIN ADDITIONAL PAYMENTS BY THE
COMPANY.
(A)
IF IT IS DETERMINED (AS HEREAFTER PROVIDED)
THAT ANY PAYMENT OR DISTRIBUTION BY THE COMPANY TO OR FOR THE BENEFIT OF
EXECUTIVE, WHETHER PAID OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO
THE TERMS OF THIS AGREEMENT OR OTHERWISE PURSUANT TO OR BY REASON OF ANY OTHER
AGREEMENT, POLICY, PLAN, PROGRAM OR ARRANGEMENT, INCLUDING WITHOUT LIMITATION
ANY STOCK OPTION, STOCK APPRECIATION RIGHT OR SIMILAR RIGHT, OR THE LAPSE OR
TERMINATION OF ANY RESTRICTION ON OR THE VESTING OR EXERCISABILITY OF ANY OF THE
FOREGOING (EACH A "PAYMENT"), WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY
SECTION 4999 OF THE CODE (OR ANY SUCCESSOR PROVISION THERETO) OR TO ANY SIMILAR
TAX IMPOSED BY STATE OR LOCAL LAW, OR ANY INTEREST OR PENALTIES WITH RESPECT TO
SUCH EXCISE TAX (SUCH TAX OR TAXES, TOGETHER WITH ANY SUCH INTEREST AND
PENALTIES, ARE HEREAFTER COLLECTIVELY REFERRED TO AS THE "EXCISE TAX"), THEN
EXECUTIVE WILL BE ENTITLED TO RECEIVE AN ADDITIONAL PAYMENT OR PAYMENTS (A
"GROSS-UP PAYMENT") IN AN AMOUNT SUCH THAT, AFTER PAYMENT BY EXECUTIVE OF ALL
TAXES (INCLUDING ANY INTEREST OR PENALTIES IMPOSED WITH
7
RESPECT TO SUCH TAXES), INCLUDING ANY EXCISE TAX, IMPOSED UPON THE GROSS-UP
PAYMENT, EXECUTIVE RETAINS AN AMOUNT OF THE GROSS-UP PAYMENT EQUAL TO THE EXCISE
TAX IMPOSED UPON THE PAYMENTS. NOTWITHSTANDING THE PREVIOUS SENTENCE, IF THE
AGGREGATE VALUE OF THE PAYMENTS FOR PURPOSES OF SECTIONS 280G AND 4099 OF THE
CODE EQUALS OR EXCEEDS 100%, BUT IS NOT GREATER THAN 110%, OF THE SAFE HARBOR
AMOUNT, THEN NO GROSS-UP PAYMENT SHALL BE PAYABLE TO EXECUTIVE AND THE AGGREGATE
AMOUNT OF PAYMENTS PAYABLE TO EXECUTIVE SHALL BE REDUCED IN THE MANNER SELECTED
BY EXECUTIVE TO THE SAFE HARBOR AMOUNT.
(B)
SUBJECT TO THE PROVISIONS OF SECTION 4(F)
HEREOF, ALL DETERMINATIONS REQUIRED TO BE MADE UNDER THIS SECTION 4, INCLUDING
WHETHER AN EXCISE TAX IS PAYABLE BY EXECUTIVE AND THE