ANY SUCH EMPLOYEE
BENEFITS, PROVIDED THAT NO SUCH IMPROVEMENT SHALL IN ANY WAY DIMINISH ANY OTHER
OBLIGATION OF THE COMPANY UNDER THIS AGREEMENT.
(C)
THE COMPANY HAS DETERMINED THAT THE AMOUNTS
PAYABLE PURSUANT TO THIS SECTION 3 CONSTITUTE REASONABLE COMPENSATION.
ACCORDINGLY, NOTWITHSTANDING ANY OTHER PROVISION HEREOF, UNLESS SUCH ACTION
WOULD BE EXPRESSLY PROHIBITED BY APPLICABLE LAW, IF ANY AMOUNT PAID OR PAYABLE
PURSUANT TO THIS SECTION 3 IS SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), THE COMPANY WILL
PAY TO THE EXECUTIVE AN ADDITIONAL AMOUNT IN CASH EQUAL TO THE AMOUNT NECESSARY
TO CAUSE THE AGGREGATE REMUNERATION RECEIVED BY THE EXECUTIVE UNDER THIS
SECTION 3, INCLUDING SUCH ADDITIONAL CASH PAYMENT (NET OF ALL FEDERAL, STATE AND
LOCAL INCOME AND OTHER TAXES AND ALL TAXES PAYABLE AS THE RESULT OF THE
APPLICATION OF SECTIONS 280G AND 4999 OF THE CODE) TO BE EQUAL TO THE AGGREGATE
REMUNERATION THE EXECUTIVE WOULD HAVE RECEIVED UNDER THIS SECTION 3, EXCLUDING
SUCH ADDITIONAL PAYMENT (NET OF ALL FEDERAL, STATE AND LOCAL INCOME AND OTHER
TAXES), AS IF SECTIONS 280G AND 4999 OF THE CODE (AND ANY SUCCESSOR PROVISIONS
THERETO) HAD NOT BEEN ENACTED INTO LAW.
4.
TERMINATION FOLLOWING A CHANGE IN
CONTROL:
(A)
IN THE EVENT OF THE OCCURRENCE OF A CHANGE
IN CONTROL, THIS AGREEMENT MAY BE TERMINATED BY THE COMPANY DURING THE PERIOD OF
EMPLOYMENT ONLY UPON THE OCCURRENCE OF ONE OR MORE OF THE FOLLOWING EVENTS:
5
(I)
IF THE EXECUTIVE IS UNABLE TO PERFORM
THE ESSENTIAL FUNCTIONS OF THE EXECUTIVE'S JOB (WITH OR WITHOUT REASONABLE
ACCOMMODATION) BECAUSE THE EXECUTIVE HAS BECOME PERMANENTLY DISABLED WITHIN THE
MEANING OF, AND ACTUALLY BEGINS TO RECEIVE DISABILITY BENEFITS PURSUANT TO, A
LONG-TERM DISABILITY PLAN MAINTAINED BY OR ON BEHALF OF THE COMPANY FOR SENIOR
EXECUTIVES GENERALLY OR, IF APPLICABLE, EMPLOYEES OF THE COMPANY IMMEDIATELY
PRIOR TO THE CHANGE IN CONTROL; OR
(II)
FOR "CAUSE," WHICH FOR PURPOSES OF THIS
AGREEMENT SHALL MEAN THAT, PRIOR TO ANY TERMINATION PURSUANT TO SUBSECTION 4(B)
HEREOF, THE EXECUTIVE SHALL HAVE COMMITTED:
(A)
AN INTENTIONAL ACT OF MATERIAL FRAUD,
EMBEZZLEMENT OR THEFT IN CONNECTION WITH THE EXECUTIVE'S DUTIES OR IN THE COURSE
OF THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY;
(B)
INTENTIONAL, WRONGFUL DAMAGE TO MATERIAL
PROPERTY OF THE COMPANY;
(C)
INTENTIONAL, WRONGFUL DISCLOSURE OF MATERIAL
SECRET PROCESSES OR CONFIDENTIAL INFORMATION OF THE COMPANY; OR
(D)
INTENTIONAL WRONGFUL ENGAGEMENT IN ANY
COMPETITIVE ACTIVITY;
and any such act shall have been materially harmful to the Company.
For
purposes of this Agreement, no act, or failure to act, on the part of the
Executive shall be deemed "intentional" if it was due primarily to an error in
judgment or negligence, but shall be deemed "intentional" only if done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interest of the
Company.
Notwithstanding the foregoing, the Executive shall not be deemed to
have