GENERALLY.
4
(E)
ANY BREACH BY THE COMPANY OF ITS OBLIGATION UNDER SECTION 4 OF
THIS AGREEMENT OR ANY FAILURE OF A SUCCESSOR COMPANY TO ASSUME AND AGREE TO
PERFORM THE COMPANY'S ENTIRE OBLIGATIONS UNDER THIS AGREEMENT, AS REQUIRED BY
SECTION 4 HEREIN.
The Executive's right to terminate employment for Good Reason shall not be
affected by the Executive's incapacity due to physical or mental illness.
The
Executive's continued employment shall not constitute consent to, or a waiver of
rights with respect to, any circumstance constituting Good Reason herein.
2.6.
DEFINITION OF "CAUSE."
"CAUSE" SHALL MEAN THE OCCURRENCE OF ANY
ONE OR MORE OF THE FOLLOWING:
(A)
A DEMONSTRABLY WILLFUL AND DELIBERATE ACT OR FAILURE TO ACT BY THE
EXECUTIVE (OTHER THAN AS A RESULT OF INCAPACITY DUE TO PHYSICAL OR MENTAL
ILLNESS) WHICH IS COMMITTED IN BAD FAITH, WITHOUT REASONABLE BELIEF THAT SUCH
ACTION OR INACTION IS IN THE BEST INTERESTS OF THE COMPANY, WHICH CAUSES ACTUAL
MATERIAL FINANCIAL INJURY TO THE COMPANY, OR ANY OF ITS SUBSIDIARIES, AND WHICH
ACT OR INACTION IS NOT REMEDIED WITHIN FIFTEEN (15) BUSINESS DAYS OF WRITTEN
NOTICE FROM THE COMPANY OR THE SUBSIDIARY FOR WHICH THE EXECUTIVE WORKS; OR
(B)
THE EXECUTIVE'S CONVICTION FOR COMMITTING AN ACT OF FRAUD,
EMBEZZLEMENT, THEFT, OR ANY OTHER ACT CONSTITUTING A FELONY INVOLVING MORAL
TURPITUDE WHICH CAUSES MATERIAL HARM, FINANCIAL OR OTHERWISE, TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES.
2.7.
OTHER DEFINED TERMS.
THE FOLLOWING TERMS SHALL HAVE THE MEANINGS
SET FORTH BELOW:
(A)
"BASE SALARY" MEANS, AT ANY TIME, THE THEN-REGULAR ANNUAL RATE OF
PAY WHICH THE EXECUTIVE IS RECEIVING AS SALARY, EXCLUDING AMOUNTS: (I)
DESIGNATED BY THE COMPANY AS PAYMENT TOWARD REIMBURSEMENT OF EXPENSES; OF (II)
RECEIVED UNDER INCENTIVE OR OTHER BONUS PLANS, REGARDLESS OF WHETHER OR NOT THE
AMOUNTS ARE DEFERRED.
(B)
"BENEFICIAL OWNER" SHALL HAVE THE MEANING ASCRIBED TO SUCH TERM IN
RULE 13D-3 OF THE GENERAL RULES AND REGULATIONS UNDER THE EXCHANGE ACT (AS SUCH
TERM IS DEFINED BELOW).
(C)
"BONUS AMOUNT" MEANS THE AVERAGE OF THE ANNUAL CASH BONUSES PAID
TO THE EXECUTIVE FOR THE THREE (3) CALENDAR YEARS IMMEDIATELY PRECEDING THE YEAR
IN WHICH THE QUALIFYING TERMINATION OCCURS, INCLUDING CASH BONUSES THAT ARE
DEFERRED PURSUANT TO ANY DEFERRAL ELECTION BY EXECUTIVE UNDER A TAX-QUALIFIED OR
NON-QUALIFIED RETIREMENT OR DEFERRAL PLAN MAINTAINED BY THE COMPANY, OR ANY OF
ITS SUBSIDIARIES.
(D)
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED FROM TIME TO TIME, OR ANY SUCCESSOR ACT THERETO.
(E)
"PERSON" SHALL HAVE THE MEANING ASCRIBED TO SUCH TERM IN SECTION
3(A)(9) OF THE EXCHANGE ACT AND USED IN SECTIONS 13(D) AND 14(D) THEREOF,
INCLUDING A "GROUP" AS DEFINED IN SECTION 13(D) THEREOF.
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SECTION 3.
EXCISE TAX
3.1.
EXCISE TAX PAYMENT.
IF ANY PORTION OF THE SEVERANCE BENEFITS OR
ANY OTHER PAYMENT UNDER THIS AGREEMENT, OR UNDER ANY OTHER AGREEMENT WITH, OR
PLAN OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, INCLUDING BUT NOT LIMITED TO
STOCK OPTIONS AND OTHER LONG-TERM INCENTIVES (IN THE