REASON EVENT (X) WAS AT THE
REQUEST OR INSTRUCTION OF A THIRD PARTY WHO HAD TAKEN STEPS REASONABLY
CALCULATED TO EFFECT A CHANGE IN CONTROL OR (Y) OTHERWISE AROSE WITHIN SIX
MONTHS OF, AND WAS IN CONNECTION WITH OR IN ANTICIPATION OF, A CHANGE IN
CONTROL, AND (3) A CHANGE IN CONTROL OCCURS.
(iii)
For purposes of clauses (i)(1)(y) and (ii)(1)(y) of this Section
3.05(a), it shall be presumed that such event was in connection with or in
anticipation of a Change in Control unless the Company establishes otherwise by
clear and convincing evidence.
(B)
IF THE EXECUTIVE HAS REASON TO BELIEVE THAT AN ANTICIPATORY
TERMINATION MAY HAVE OCCURRED, HE SHALL PROVIDE A NOTICE SETTING FORTH SUCH
BELIEF IN ACCORDANCE WITH ARTICLE VII OF THIS AGREEMENT WITHIN 120 DAYS AFTER A
CHANGE IN CONTROL HAS OCCURRED. UPON AN ANTICIPATORY TERMINATION, THE EXECUTIVE
SHALL BE ENTITLED TO (A) THE PAYMENTS SPECIFIED IN SECTIONS 3.01(A),(D) AND (E)
(TO THE EXTENT
5
NOT PREVIOUSLY PAID), (B) THE BENEFITS SPECIFIED IN SECTION 3.01(B) (TO THE
EXTENT NOT PREVIOUSLY PROVIDED) (OR THE AFTER-TAX EQUIVALENT THEREOF TO THE
EXTENT THAT SUCH BENEFITS HAVE NOT BEEN OR ARE NOT PROVIDED IN KIND), (C) TO THE
EXTENT THAT THE EXECUTIVE HAS OUTSTANDING ANY UNEXERCISED STOCK OPTIONS AND
OTHER STOCK-BASED AWARDS, THE PROVISIONS OF SECTION 3.01(C) SHALL APPLY TO THEM,
(D) IN RESPECT OF ANY STOCK OPTIONS OR OTHER STOCK BASED AWARDS THAT WERE
FORFEITED BY THE EXECUTIVE AS A RESULT OF HIS TERMINATION OF EMPLOYMENT BUT
WOULD HAVE VESTED HAD SECTION 3.01(C) APPLIED, SUCH AWARDS SHALL BE REINSTATED
(OR IF NOT REINSTATED, THE EXECUTIVE SHALL BE PAID IN CASH THE FAIR VALUE OF
SUCH AWARD), AND (E) LIQUIDATED DAMAGES OF $25,000 FOR PENALTIES ASSOCIATED WITH
THE ANTICIPATORY TERMINATION. FOR THE PURPOSES OF THIS SECTION 3.05(B), THE
EXECUTIVE'S DATE OF TERMINATION SHALL BE DEEMED TO BE HIS LAST DATE OF
EMPLOYMENT BY THE COMPANY.
SECTION 3.06
NONEXCLUSIVITY OF RIGHTS.
NOTHING IN THIS AGREEMENT
SHALL PREVENT OR LIMIT THE EXECUTIVE'S CONTINUING OR FUTURE PARTICIPATION IN ANY
PLAN, PROGRAM, POLICY OR PRACTICE PROVIDED BY THE COMPANY AND FOR WHICH THE
EXECUTIVE MAY QUALIFY, NOR, SUBJECT TO SECTION 8.02, SHALL ANYTHING HEREIN LIMIT
OR OTHERWISE AFFECT SUCH RIGHTS AS THE EXECUTIVE MAY HAVE UNDER ANY CONTRACT OR
AGREEMENT WITH THE COMPANY. AMOUNTS WHICH ARE VESTED BENEFITS OR WHICH THE
EXECUTIVE IS OTHERWISE ENTITLED TO RECEIVE UNDER ANY PLAN, POLICY, PRACTICE, OR
PROGRAM OF OR ANY CONTRACT OR AGREEMENT WITH THE COMPANY AT OR SUBSEQUENT TO THE
DATE OF TERMINATION SHALL BE PAYABLE IN ACCORDANCE WITH SUCH PLAN, POLICY,
PRACTICE OR PROGRAM OR CONTRACT OR AGREEMENT EXCEPT AS EXPLICITLY MODIFIED BY
THIS AGREEMENT.
SECTION 3.07
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(A)
ANYTHING IN THIS AGREEMENT OR IN ANY OTHER AGREEMENT BETWEEN THE
COMPANY AND THE EXECUTIVE OR IN ANY STOCK OPTION OR OTHER BENEFIT PLAN TO THE
CONTRARY NOTWITHSTANDING AND EXCEPT AS SET FORTH BELOW, IN THE EVENT IT SHALL BE
DETERMINED THAT ANY PAYMENT OR DISTRIBUTION BY THE COMPANY TO