APPLICABLE TRANSITIONAL RULES.
3.4.
WAIVER AND RELEASE.
THE COMPANY SHALL HAVE NO OBLIGATION TO
EXECUTIVE UNDER THIS ARTICLE III UNLESS AND UNTIL EXECUTIVE EXECUTES A RELEASE
AND WAIVER OF THE COMPANY, IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY,
AND THE PERIOD (IF ANY) DURING WHICH EXECUTIVE MAY REVOKE SUCH RELEASE AND
WAIVER HAS EXPIRED WITHOUT REVOCATION.
3.5.
TERMINATION FOR CAUSE OR OTHER THAN FOR GOOD REASON.
IF THE
COMPANY TERMINATES EXECUTIVE'S EMPLOYMENT FOR CAUSE, OR EXECUTIVE ELECTS TO
RETIRE OR OTHERWISE TERMINATE EMPLOYMENT OTHER THAN FOR GOOD REASON, THE
COMPANY'S SOLE OBLIGATION TO EXECUTIVE UNDER THIS AGREEMENT SHALL BE TO PAY
EXECUTIVE, PURSUANT TO THE COMPANY'S THEN-EFFECTIVE PLANS, A LUMP-SUM CASH
AMOUNT EQUAL TO ALL ACCRUED OBLIGATIONS DETERMINED AS OF THE TERMINATION DATE.
3.6.
DISABILITY OR DEATH.
IF EXECUTIVE'S EMPLOYMENT IS TERMINATED BY
REASON OF EXECUTIVE'S DEATH OR DISABILITY, THE COMPANY'S SOLE OBLIGATIONS TO
EXECUTIVE UNDER THIS AGREEMENT SHALL BE TO PAY EXECUTIVE OR EXECUTIVE'S
BENEFICIARY, PURSUANT TO THE COMPANY'S THEN-EFFECTIVE PLANS, A LUMP-SUM CASH
AMOUNT EQUAL TO ALL ACCRUED OBLIGATIONS, AND TO PROVIDE EXECUTIVE OR EXECUTIVE'S
BENEFICIARY DISABILITY, SURVIVOR AND OTHER BENEFITS, IF ANY, THAT ARE NOT LESS
THAN THE MOST FAVORABLE SURVIVOR AND OTHER BENEFITS THEN AVAILABLE UNDER PLANS
OF THE COMPANY.
3.7.
NOTICE OF TERMINATION.
ANY TERMINATION OF EMPLOYMENT OF EXECUTIVE
BY THE COMPANY FOR ANY REASON OR BY THE EXECUTIVE FOR GOOD REASON SHALL BE
COMMUNICATED TO THE OTHER AND EFFECTIVE PURSUANT TO A NOTICE OF TERMINATION.
ARTICLE IV.
LIMITATION ON PAYMENTS BY THE COMPANY
4.1.
LIMITATION.
IN THE EVENT THAT THE COMPANY'S INDEPENDENT TAX
COUNSEL CONFIRM IN WRITING TO THE COMPANY AND EXECUTIVE THAT PAYMENTS UNDER THIS
AGREEMENT, TOGETHER WITH ANY OTHER PAYMENTS TO EXECUTIVE FROM THE COMPANY THAT
ARE "PARACHUTE PAYMENTS" WITHIN THE MEANING OF SECTION 280G OF THE CODE
("POTENTIAL PARACHUTE PAYMENTS") WOULD OTHERWISE EXCEED THREE TIMES THE
EXECUTIVE'S "BASE AMOUNT" AS DEFINED IN SECTION 280G OF THE CODE, THEN
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT THE PAYMENTS UNDER
THIS AGREEMENT SHALL BE REDUCED TO AN AMOUNT SUCH THAT THE POTENTIAL PARACHUTE
PAYMENTS DO NOT EXCEED 2.99 TIMES THE EXECUTIVE'S BASE AMOUNT.
ANY REDUCTION IN
PAYMENTS REQUIRED BY THIS SECTION 4.1 SHALL
9
BE APPLIED TO SUCH PAYMENTS AND BENEFITS UNDER THIS AGREEMENT AS THE COMPANY IN
ITS SOLE DISCRETION DEEMS NECESSARY, SHALL BE COMMUNICATED TO EXECUTIVE IN
WRITING PRIOR TO THE DATE THE FIRST REDUCED PAYMENT OR BENEFIT WOULD OTHERWISE
BE DUE, SHALL BE ACCOMPANIED BY THE CERTIFICATION OF THE COMPANY'S INDEPENDENT
AUDITORS TO EXECUTIVE THAT THE REDUCTIONS ARE IN THE MINIMUM AMOUNT REQUIRED TO
COMPLY WITH THIS SECTION 4.1.
ARTICLE V.
ARBITRATION
5.1.
BINDING ARBITRATION.
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING
OUT OF OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY BREACH OR
ALLEGED BREACH THEREOF, OR ANY BENEFIT OR ALLEGED BENEFIT HEREUNDER, SHALL BE
SUBMITTED TO AND SETTLED BY BINDING ARBITRATION, IN ACCORDANCE WITH THE AMERICAN
ARBITRATION ASSOCIATION RULES ("AAA RULES") FOR THE RESOLUTION OF EMPLOYMENT
DISPUTES.
ANY AWARD RENDERED SHALL BE FINAL