COMPENSATION OR BENEFIT PLAN OR PROGRAM (INCLUDING
WITHOUT LIMITATION ANY LIFE INSURANCE, MEDICAL, HEALTH AND ACCIDENT OR
DISABILITY PLAN AND ANY VACATION OR AUTOMOBILE PROGRAM OR POLICY) (A "BENEFIT
PLAN") IN WHICH THE EMPLOYEE PARTICIPATES OR WHICH IS APPLICABLE TO THE EMPLOYEE
IMMEDIATELY PRIOR TO THE MEASUREMENT DATE, UNLESS AN EQUITABLE ARRANGEMENT
3
(EMBODIED IN AN ONGOING SUBSTITUTE OR ALTERNATIVE PLAN) HAS BEEN MADE WITH
RESPECT TO SUCH PLAN OR PROGRAM OR (II) CONTINUE THE EMPLOYEE'S PARTICIPATION
THEREIN (OR IN SUCH SUBSTITUTE OR ALTERNATIVE PLAN) ON A BASIS NOT MATERIALLY
LESS FAVORABLE, BOTH IN TERMS OF THE AMOUNT OF BENEFITS PROVIDED AND THE LEVEL
OF THE EMPLOYEE'S PARTICIPATION RELATIVE TO OTHER PARTICIPANTS, THAN THE BASIS
EXISTING IMMEDIATELY PRIOR TO THE MEASUREMENT DATE;
(D)
A CHANGE BY THE COMPANY IN THE LOCATION AT
WHICH THE EMPLOYEE PERFORMS HIS PRINCIPAL DUTIES FOR THE COMPANY TO A NEW
LOCATION THAT IS MORE THAN 50 MILES FROM THE LOCATION AT WHICH THE EMPLOYEE
PERFORMED HIS PRINCIPAL DUTIES FOR THE COMPANY IMMEDIATELY PRIOR TO THE
MEASUREMENT DATE; OR A REQUIREMENT BY THE COMPANY THAT THE EMPLOYEE TRAVEL ON
COMPANY BUSINESS TO A SUBSTANTIALLY GREATER EXTENT THAN REQUIRED IMMEDIATELY
PRIOR TO THE MEASUREMENT DATE;
(E)
THE FAILURE OF THE COMPANY TO OBTAIN THE
AGREEMENT FROM ANY SUCCESSOR TO THE COMPANY TO ASSUME AND AGREE TO PERFORM THIS
AGREEMENT, AS REQUIRED BY SECTION 5.1; OR
(F)
ANY MATERIAL BREACH BY THE COMPANY OF
THIS AGREEMENT WITH THE EMPLOYEE.
The Employee's right to terminate his employment for Good Reason shall not be
affected by his incapacity due to physical or mental illness.
1.5
"DISABILITY" MEANS THE EMPLOYEE'S ABSENCE
FROM THE FULL-TIME PERFORMANCE OF THE EMPLOYEE'S DUTIES WITH THE COMPANY FOR 180
CONSECUTIVE CALENDAR DAYS AS A RESULT OF INCAPACITY DUE TO MENTAL OR PHYSICAL
ILLNESS WHICH IS DETERMINED TO BE TOTAL AND PERMANENT BY A PHYSICIAN SELECTED BY
THE COMPANY OR ITS INSURERS AND ACCEPTABLE TO THE EMPLOYEE OR THE EMPLOYEE'S
LEGAL REPRESENTATIVE.
1.6
"CODE" MEANS THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
2.
TERM OF AGREEMENT. THIS AGREEMENT, AND ALL RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL TAKE EFFECT UPON THE EFFECTIVE DATE
AND SHALL EXPIRE UPON THE FIRST TO OCCUR OF (A) THE EXPIRATION OF THE TERM (AS
DEFINED BELOW) IF A CHANGE IN CONTROL HAS NOT OCCURRED DURING THE TERM, (B) THE
TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY PRIOR TO THE CHANGE IN
CONTROL DATE, (C) THE DATE 12 MONTHS AFTER THE CHANGE IN CONTROL DATE, IF THE
EMPLOYEE IS STILL EMPLOYED BY THE COMPANY AS OF SUCH LATER DATE, OR (D) THE
FULFILLMENT BY THE COMPANY OF ALL OF ITS OBLIGATIONS UNDER SECTIONS 4 AND 5.2 IF
THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY TERMINATES WITHIN 12 MONTHS FOLLOWING
THE CHANGE IN CONTROL DATE. "TERM" SHALL MEAN THE PERIOD COMMENCING AS OF THE
EFFECTIVE DATE AND CONTINUING IN EFFECT THROUGH DECEMBER 31, 2008; PROVIDED,
HOWEVER, THAT COMMENCING ON JANUARY 1, 2009 AND EACH JANUARY 1 THEREAFTER, THE
TERM SHALL BE