COMPENSATION SEPARATION BENEFITS") OTHERWISE DUE TO EXECUTIVE ON OR WITHIN THE
SIX (6) MONTH PERIOD FOLLOWING EXECUTIVE'S TERMINATION WILL ACCRUE DURING SUCH
SIX (6) MONTH PERIOD AND WILL BECOME PAYABLE IN A LUMP SUM PAYMENT ON THE DATE
SIX (6) MONTHS AND ONE (1) DAY FOLLOWING THE DATE OF EXECUTIVE'S TERMINATION OF
EMPLOYMENT, UNLESS EXECUTIVE DIES FOLLOWING THE TERMINATION OF HIS EMPLOYMENT,
IN WHICH CASE, THE DEFERRED COMPENSATION SEPARATION BENEFITS WILL BE PAID TO THE
PERSONAL REPRESENTATIVE OF EXECUTIVE'S ESTATE (WHICH SHALL BE EXECUTIVE'S LIVING
TRUST, OR IF THERE IS NONE, HIS PROBATE ESTATE) AS SOON AS PRACTICABLE
following his death.
All subsequent Deferred Compensation Separation Benefits,
if any, will be payable in accordance with the payment schedule applicable to
each payment or benefit.
It is the intent of this Agreement to comply with the
requirements of Section 409A so that none of the severance payments and benefits
to be provided hereunder will be subject to the additional tax imposed under
Section 409A, and any ambiguities herein will be interpreted to so comply.
11.
LIMITATION ON PAYMENTS.
IN THE EVENT THAT
THE SEVERANCE AND OTHER BENEFITS PROVIDED FOR IN THIS AGREEMENT OR OTHERWISE
PAYABLE TO EXECUTIVE (A) CONSTITUTE "PARACHUTE PAYMENTS" WITHIN THE MEANING OF
SECTION 280G OF THE CODE AND (B) BUT FOR THIS SECTION 11, WOULD BE SUBJECT TO
THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE, THEN EXECUTIVE'S SEVERANCE
BENEFITS UNDER SECTION 8 WILL BE EITHER (I) DELIVERED IN FULL, OR (II) DELIVERED
AS TO SUCH LESSER EXTENT WHICH WOULD RESULT IN NO PORTION OF SUCH SEVERANCE
BENEFITS BEING SUBJECT TO EXCISE TAX UNDER SECTION 4999 OF THE CODE, WHICHEVER
OF THE FOREGOING AMOUNTS, TAKING INTO ACCOUNT THE APPLICABLE FEDERAL, STATE AND
LOCAL INCOME TAXES AND THE EXCISE TAX IMPOSED BY SECTION 4999, RESULTS IN THE
RECEIPT BY EXECUTIVE ON AN AFTER-TAX BASIS, OF THE GREATEST AMOUNT OF SEVERANCE
BENEFITS, NOTWITHSTANDING THAT ALL OR SOME PORTION OF SUCH SEVERANCE BENEFITS
MAY BE TAXABLE UNDER SECTION 4999 OF THE CODE.
UNLESS THE COMPANY AND EXECUTIVE
OTHERWISE AGREE IN WRITING, ANY DETERMINATION REQUIRED UNDER THIS SECTION 11
WILL BE MADE IN WRITING BY THE COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS
IMMEDIATELY PRIOR TO THE CHANGE OF CONTROL (THE "ACCOUNTANTS"), WHOSE
DETERMINATION WILL BE CONCLUSIVE AND BINDING UPON EXECUTIVE AND THE COMPANY FOR
ALL PURPOSES.
FOR PURPOSES OF MAKING THE CALCULATIONS REQUIRED BY THIS
SECTION 11, THE ACCOUNTANTS MAY MAKE REASONABLE ASSUMPTIONS AND APPROXIMATIONS
CONCERNING APPLICABLE TAXES AND MAY RELY ON REASONABLE, GOOD FAITH
INTERPRETATIONS CONCERNING THE APPLICATION OF SECTIONS 280G AND 4999 OF THE
CODE.
THE COMPANY AND EXECUTIVE WILL FURNISH TO THE ACCOUNTANTS SUCH
INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY REASONABLY REQUEST IN ORDER TO
MAKE A DETERMINATION UNDER THIS SECTION.
THE COMPANY WILL BEAR ALL COSTS THE
ACCOUNTANTS MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS
CONTEMPLATED BY THIS SECTION 11.
12.
DEFINITIONS.
(A)
CAUSE.
FOR PURPOSES OF THIS AGREEMENT,
"CAUSE" WILL MEAN:
(i)
Executive's gross negligence or willful
misconduct in the performance of the Employee's