THE TERMS OF THIS
AGREEMENT IS NECESSARY TO COMPLY WITH THE PROVISIONS OF SECTION 8(A), THE
EMPLOYEE SHALL BE ENTITLED TO SELECT WHICH PAYMENTS OR BENEFITS WILL BE REDUCED
AND THE MANNER AND METHOD OF ANY SUCH REDUCTION OF SUCH PAYMENTS OR BENEFITS
SUBJECT TO REASONABLE LIMITATIONS (INCLUDING, FOR EXAMPLE, EXPRESS PROVISIONS
UNDER THE COMPANIES' BENEFIT PLANS) (SO LONG AS THE REQUIREMENTS OF SECTION 8(A)
ARE MET).
WITHIN THIRTY (30) DAYS AFTER THE AMOUNT OF ANY REQUIRED REDUCTION IN
PAYMENTS AND BENEFITS IS FINALLY DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 8(C), THE EMPLOYEE SHALL NOTIFY THE COMPANY IN WRITING REGARDING WHICH
PAYMENTS OR BENEFITS ARE TO BE REDUCED.
IF NO NOTIFICATION IS GIVEN BY THE
EMPLOYEE, THE COMPANY WILL DETERMINE WHICH AMOUNTS TO REDUCE.
IF, AS A RESULT
OF ANY REDUCTION REQUIRED BY SECTION 8(A), AMOUNTS PREVIOUSLY PAID TO THE
EMPLOYEE EXCEED THE AMOUNT TO WHICH THE EMPLOYEE IS ENTITLED, THE EMPLOYEE WILL
PROMPTLY RETURN THE EXCESS AMOUNT TO THE COMPANY.
(C)
UNLESS THE COMPANY AND THE EMPLOYEE
OTHERWISE AGREE IN WRITING, ANY DETERMINATION REQUIRED UNDER THIS SECTION 8
SHALL BE MADE IN WRITING BY THE COMPANY'S PRIMARY OUTSIDE TAX ADVISORS
IMMEDIATELY PRIOR TO THE CHANGE OF CONTROL (THE "ACCOUNTANTS"), WHOSE
DETERMINATION SHALL BE CONCLUSIVE AND BINDING UPON THE EMPLOYEE AND THE COMPANY
FOR ALL PURPOSES.
FOR PURPOSES OF MAKING THE CALCULATIONS REQUIRED BY THIS
SECTION 8, THE ACCOUNTANTS MAY, AFTER TAKING INTO ACCOUNT THE INFORMATION
PROVIDED BY THE EMPLOYEE, 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 COMPANIES AND THE EMPLOYEE SHALL FURNISH TO THE ACCOUNTANTS SUCH
INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY REASONABLY REQUEST IN ORDER TO
MAKE A DETERMINATION UNDER THIS SECTION.
THE COMPANIES SHALL BEAR ALL COSTS THE
ACCOUNTANTS MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS
CONTEMPLATED BY THIS SECTION 8.
9.
DEFINITION OF TERMS.
THE FOLLOWING
TERMS REFERRED TO IN THIS AGREEMENT SHALL HAVE THE FOLLOWING MEANINGS:
(A)
ANNUAL COMPENSATION.
"ANNUAL COMPENSATION"
MEANS AN AMOUNT EQUAL TO THE GREATER OF (I) EMPLOYEE'S BASE SALARY FOR THE
TWELVE (12) MONTHS PRECEDING THE CHANGE OF CONTROL PLUS THE EMPLOYEE'S TARGET
BONUS FOR THE SAME PERIOD, OR (II) EMPLOYEE'S BASE SALARY ON AN ANNUALIZED BASIS
AND THE EMPLOYEE'S TARGET BONUS AS OF THE TERMINATION DATE.
(B)
CAUSE.
"CAUSE" SHALL MEAN (I) ANY ACT OF
PERSONAL DISHONESTY TAKEN BY THE EMPLOYEE IN CONNECTION WITH HIS
RESPONSIBILITIES AS AN EMPLOYEE AND INTENDED TO RESULT IN SUBSTANTIAL PERSONAL
ENRICHMENT OF THE EMPLOYEE, (II) THE CONVICTION OF OR PLEA OF NOLO CONTENDERE TO
A FELONY, (III) A WILLFUL ACT BY THE EMPLOYEE THAT CONSTITUTES GROSS MISCONDUCT
AND THAT IS INJURIOUS TO THE COMPANY, OR (IV) FOR A PERIOD OF NOT LESS THAN
THIRTY (30) DAYS FOLLOWING DELIVERY TO THE EMPLOYEE OF A WRITTEN DEMAND FOR
PERFORMANCE FROM THE COMPANY THAT DESCRIBES THE BASIS FOR THE COMPANY'S BELIEF
THAT THE EMPLOYEE HAS NOT SUBSTANTIALLY PERFORMED HIS DUTIES, CONTINUED
VIOLATIONS