PERSON
OR PERSONS DESIGNATED AS SUCH BY THE PARTICIPANT IN WRITING PRIOR TO THE
PARTICIPANT'S DEATH.
IF NO SUCH PERSON SURVIVES THE PARTICIPANT, THE
BENEFICIARY SHALL BE THE PARTICIPANT'S ESTATE.
(II)
"CAUSE" SHALL MEAN ANY OF THE FOLLOWING
WITH RESPECT TO THE PARTICIPANT, HIS OR HER
A.
BEING CONVICTED OF A CRIME INVOLVING THE
COMPANY (OTHER THAN PURSUANT TO ACTIONS TAKEN AT THE DIRECTION OR WITH THE
APPROVAL OF THE BOARD),
4
B.
BEING FOUND BY REASONABLE DETERMINATION
OF THE COMPANY, MADE IN GOOD FAITH, TO HAVE ENGAGED IN (1) WILLFUL MISCONDUCT
THAT HAS A MATERIAL ADVERSE EFFECT ON THE COMPANY, (2) WILLFUL OR GROSS NEGLECT
THAT HAS A MATERIAL ADVERSE EFFECT ON THE COMPANY, (3) FRAUD,
(4) MISAPPROPRIATION OR (5) EMBEZZLEMENT IN THE PERFORMANCE OF HIS DUTIES
HEREUNDER, OR
C.
HAVING BREACHED IN ANY MATERIAL RESPECT
THE MATERIAL TERMS AND PROVISIONS OF HIS OR HER EMPLOYMENT AGREEMENT OR ANY
OTHER MATERIAL CONTRACT BETWEEN THE PARTICIPANT AND THE COMPANY AND FAILED TO
CURE SUCH BREACH WITHIN 15 DAYS FOLLOWING WRITTEN NOTICE FROM THE COMPANY
SPECIFYING SUCH BREACH;
PROVIDED THAT THE TERMINATION FOR CAUSE REQUIRES A WRITTEN NOTICE GIVEN TO THE
PARTICIPANT AT ANY TIME FOLLOWING THE OCCURRENCE OF ANY OF THE EVENTS DESCRIBED
IN CLAUSES A AND B ABOVE AND ON WRITTEN NOTICE GIVEN TO THE PARTICIPANT AT ANY
TIME NOT LESS THAN 60 DAYS FOLLOWING THE OCCURRENCE OF ANY OF THE EVENTS
DESCRIBED IN CLAUSE C ABOVE.
(III)
"DISABILITY" SHALL HAVE THE MEANING PROVIDED
UNDER TREASURY REGULATION SECTION 1.409A-3(I)(4)(I) AND (III).
(IV)
"GOOD REASON" SHALL MEAN THE OCCURRENCE OF
(X) A CHANGE IN
CONTROL, ACCOMPANIED BY, OR FOLLOWED WITHIN THE TWELVE-MONTH
PERIOD AFTER A CHANGE IN CONTROL BY,: (Y) (I) A MATERIAL BREACH BY THE COMPANY
OF THIS AGREEMENT OR ANY APPLICABLE EMPLOYMENT AGREEMENT, (II) A MATERIAL
DIMINUTION IN THE DUTIES, TITLE OR RESPONSIBILITIES OF THE PARTICIPANT, OR
(III) A MATERIAL DIMINUTION IN THE PARTICIPANT'S BASE COMPENSATION.
HOWEVER, IN
NO EVENT SHALL THE PARTICIPANT BE CONSIDERED TO HAVE RESIGNED FOR "GOOD REASON"
UNLESS THE PARTICIPANT DELIVERS A WRITTEN NOTICE OF RESIGNATION TO THE BOARD
IDENTIFYING IN REASONABLE DETAIL THE ACTS OR OMISSIONS CONSTITUTING "GOOD
REASON" WITHIN 90 DAYS FOLLOWING THE ACTS OR OMISSIONS, AND SUCH ACTS OR
OMISSIONS ARE NOT CURED BY THE COMPANY WITHIN 30 DAYS OF THE RECEIPT OF SUCH
NOTICE AND THE PARTICIPANT ACTS ON HIS OR HER RESIGNATION WITHIN SIX MONTHS
FOLLOWING THE OCCURRENCE GIVING RISE TO A GOOD REASON.
5.
PAYMENT.
(A)
WITHIN 60 DAYS FOLLOWING THE COMMITTEE'S
CERTIFICATION IN WRITING OF THE PERFORMANCE SHARE UNITS EARNED, THE COMPANY
SHALL DISTRIBUTE TO THE PARTICIPANT (OR TO THE PARTICIPANT'S BENEFICIARY IN THE
EVENT OF DEATH) THE SHARES REPRESENTED BY PERFORMANCE SHARE UNITS THAT WERE
EARNED, REDUCED BY THE NUMBER OF SHARES (IF ANY) THAT ARE WITHHELD FROM THE
AWARD FOR THE PAYMENT OF TAX-RELATED ITEMS (AS DEFINED IN SECTION 12 HEREOF) AND
UPON THE SATISFACTION OF ALL OTHER APPLICABLE CONDITIONS AS TO THE PERFORMANCE
SHARE UNITS; PROVIDED, HOWEVER, THAT THE SHARES SHALL BE DISTRIBUTED