AS TO WHICH EXECUTIVE AND THE COMPANY CANNOT AGREE SHALL BE DETERMINED IN
WRITING BY A QUALIFIED INDEPENDENT PHYSICIAN MUTUALLY ACCEPTABLE TO EXECUTIVE
AND THE COMPANY.
IF EXECUTIVE AND THE COMPANY CANNOT AGREE AS TO A QUALIFIED
INDEPENDENT PHYSICIAN, EACH SHALL APPOINT SUCH A PHYSICIAN AND THOSE TWO
PHYSICIANS SHALL SELECT A THIRD WHO SHALL MAKE SUCH DETERMINATION IN WRITING.
THE DETERMINATION OF DISABILITY MADE IN WRITING TO THE COMPANY AND EXECUTIVE
SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES OF THE AGREEMENT.
(II)
UPON TERMINATION OF EXECUTIVE'S EMPLOYMENT HEREUNDER FOR
DISABILITY OR DEATH, EXECUTIVE OR EXECUTIVE'S ESTATE (AS THE CASE MAY BE) SHALL
BE ENTITLED TO RECEIVE:
(A)
THE ACCRUED RIGHTS; AND
(B)
A LUMP SUM PAYMENT EQUAL TO A PRO-RATA PORTION OF EXECUTIVE'S
ANNUAL BONUS FOR THE FISCAL YEAR IN WHICH EXECUTIVE'S TERMINATION OCCURS
(DETERMINED BY MULTIPLYING THE AMOUNT EXECUTIVE WOULD BE ABLE TO RECEIVE IF THE
DATE OF TERMINATION WERE THE END OF THE FISCAL YEAR BY A FRACTION, THE NUMERATOR
OF WHICH IS THE NUMBER OF DAYS DURING THE PERFORMANCE YEAR OF TERMINATION THAT
EXECUTIVE IS EMPLOYED BY THE COMPANY AND THE DENOMINATOR OF WHICH IS 365);
PROVIDED, THAT THE APPLICABLE PERFORMANCE TARGETS ARE MET FOR THE PORTION OF THE
FISCAL YEAR DURING WHICH EXECUTIVE WAS EMPLOYED BY THE COMPANY; PROVIDED,
FURTHER, THAT NO AMOUNT SHALL BE PAID TO EXECUTIVE IF AT THE TIME OF SUCH
TERMINATION NO BONUS WOULD BE PAYABLE BASED ON THE ACTUAL ACHIEVEMENT OF
CORPORATE, BUSINESS UNIT AND INDIVIDUAL PERFORMANCE RESULTS AS OF THE DATE OF
TERMINATION (FOR EXAMPLE, IF ACTUAL PERFORMANCE THROUGH THE DATE OF TERMINATION
REPRESENTED 90% OF TARGET PERFORMANCE OBJECTIVES FOR THE YEAR, EXECUTIVE WOULD
BE ENTITLED TO A PRORATA PORTION OF THE CORRESPONDING PERCENTAGE OF HIS TARGET
ANNUAL BONUS BASED ON THE APPLICABLE PERFORMANCE MATRIX, AND IF THE THRESHOLD
LEVEL OF PERFORMANCE OBJECTIVES WAS NOT ACHIEVED, NO BONUS WOULD BE PAID).
Following Executive's termination of employment due to death or Disability,
except as set forth in this Section 8(b)(ii), Section 8(d) or Sections 12(k),
(m) and (n), or any payments to be made on the Delayed Payment Date, Executive
shall have
5
no further rights to any compensation or any other benefits under this
Agreement.
C.
BY THE COMPANY WITHOUT CAUSE OR RESIGNATION BY EXECUTIVE FOR GOOD
REASON.
(I)
THE EMPLOYMENT TERM AND EXECUTIVE'S EMPLOYMENT HEREUNDER MAY BE
TERMINATED BY THE COMPANY WITHOUT CAUSE (OTHER THAN BY REASON OF DEATH OR
DISABILITY) OR BY EXECUTIVE'S RESIGNATION FOR GOOD REASON.
(II)
FOR PURPOSES OF THIS AGREEMENT, "GOOD REASON" SHALL MEAN, WITHOUT
EXECUTIVE'S WRITTEN CONSENT, (A) A REDUCTION IN EXECUTIVE'S BASE SALARY AS THEN
IN EFFECT, (B) A REDUCTION IN EXECUTIVE'S TARGET ANNUAL BONUS TO LESS THAN 55%
OF THE BASE SALARY OR A MATERIAL REDUCTION BY THE COMPANY OF EMPLOYEE BENEFITS
TO WHICH EXECUTIVE IS ENTITLED (OTHER THAN AN OVERALL REDUCTION IN BENEFITS THAT
AFFECTS SUBSTANTIALLY ALL FULL-TIME EMPLOYEES OF THE COMPANY AND ITS
AFFILIATES), (C) EXECUTIVE'S REMOVAL FROM THE POSITION OF EXECUTIVE VICE
PRESIDENT OF THE COMPANY