BE THE EXECUTIVE'S
ESTATE.
(C)
A "CHANGE IN CONTROL" SHALL OCCUR ON THE
DATE THAT ANY ONE PERSON OR GROUP (OTHER THAN ALFRED SLIFKA, RICHARD SLIFKA OR
ERIC SLIFKA, OR THEIR RESPECTIVE FAMILY MEMBERS OR ENTITIES THEY CONTROL,
INDIVIDUALLY OR IN THE AGGREGATE, DIRECTLY OR INDIRECTLY (COLLECTIVELY REFERRED
TO HEREINAFTER AS THE "SLIFKAS")) ACQUIRES OWNERSHIP OF THE EQUITY INTERESTS OF
THE COMPANY THAT, TOGETHER WITH THE EQUITY INTERESTS OF THE COMPANY ALREADY HELD
BY SUCH PERSON OR GROUP, CONSTITUTES MORE THAN 50% OF THE TOTAL VOTING POWER OF
THE EQUITY INTERESTS OF THE COMPANY; PROVIDED, HOWEVER, IF ANY ONE PERSON OR
GROUP IS CONSIDERED TO OWN MORE THAN 50% OF THE TOTAL VOTING POWER OF THE EQUITY
INTERESTS IN THE COMPANY, THE ACQUISITION OF ADDITIONAL EQUITY INTERESTS BY THE
SAME PERSON OR GROUP SHALL NOT BE DEEMED TO BE A CHANGE IN CONTROL.
THE
DEFINITION OF "CHANGE IN CONTROL" SHALL BE INTERPRETED TO COMPLY WITH
SECTION 409A, TO THE EXTENT APPLICABLE; PROVIDED, HOWEVER, AN INTERPRETATION IN
COMPLIANCE WITH SECTION 409A SHALL NOT EXPAND THE DEFINITION OF CHANGE IN
CONTROL IN ANY WAY OR CAUSE AN ACQUISITION BY THE SLIFKAS TO RESULT IN A CHANGE
IN CONTROL.
(D)
"CODE" MEANS THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, AND RELATED INTERPRETIVE GUIDANCE, REGULATIONS AND RULINGS.
(E)
"DISABLED" AND "DISABILITY" MEAN THAT THE
EXECUTIVE IS UNABLE TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY BY REASON OF
ANY MEDICALLY DETERMINABLE PHYSICAL OR MENTAL IMPAIRMENT WHICH CAN BE EXPECTED
TO RESULT IN DEATH OR CAN BE EXPECTED TO LAST FOR A CONTINUOUS PERIOD OF NOT
LESS THAN 12 MONTHS, OR THE EXECUTIVE IS, BY REASON OF SUCH AN IMPAIRMENT,
RECEIVING INCOME REPLACEMENT BENEFITS FOR A PERIOD OF NOT LESS THAN THREE MONTHS
UNDER AN ACCIDENT AND HEALTH PLAN COVERING EMPLOYEES OF THE COMPANY.
(F)
"PERSON" MEANS AN INDIVIDUAL, A
CORPORATION, A LIMITED LIABILITY COMPANY, AN ASSOCIATION, A PARTNERSHIP, AN
ESTATE, A TRUST OR ANY OTHER ENTITY OR ORGANIZATION, OTHER THAN THE COMPANY.
(G)
"SECTION 409A" MEANS SECTION 409A OF THE
CODE AND THE PROVISIONS OF TREASURY REGULATION SECTION 1.409A AND ANY SUCCESSOR
STATUTE OR REGULATION AND ALL RELATED INTERPRETIVE GUIDANCE.
3.
AMENDMENT AND TERMINATION.
THIS
AGREEMENT MAY BE AMENDED OR TERMINATED ONLY WITH THE MUTUAL WRITTEN CONSENT OF
THE COMPANY AND THE EXECUTIVE.
IN THE EVENT OF ANY AMENDMENTS INVOLVING FURTHER
DEFERRALS OF THE SERP BENEFIT, EACH PAYMENT CALLED FOR HEREUNDER
SHALL BE TREATED, TO THE EXTENT PERMISSIBLE UNDER THE CODE, AS A SEPARATE
PAYMENT FOR PURPOSES OF SECTION 409A.
4.
SECTION 409A; NO GUARANTEE OF ANY TAX
CONSEQUENCES.
THE PARTIES HERETO INTEND THAT THIS AGREEMENT COMPLY WITH THE
REQUIREMENTS OF SECTION 409A AND THIS AGREEMENT SHALL BE INTERPRETED TO COMPLY
WITH SECTION 409A.
IF ANY PROVISION HEREIN RESULTS IN THE IMPOSITION OF AN
ADDITIONAL TAX UNDER SECTION 409A, THE EXECUTIVE AND THE COMPANY AGREE THAT SUCH
PROVISION WILL BE REFORMED, TO THE EXTENT POSSIBLE, TO AVOID IMPOSITION OF ANY
SUCH ADDITIONAL TAX IN THE MANNER THAT THE EXECUTIVE AND THE COMPANY MUTUALLY