IF THE EXECUTIVE'S EMPLOYMENT IS TERMINATED FOLLOWING A CHANGE IN
CONTROL AND DURING THE TERM, OTHER THAN (X) BY THE COMPANY FOR CAUSE, (Y) BY
REASON OF DEATH OR DISABILITY, OR (Z) BY THE EXECUTIVE WITHOUT GOOD REASON,
THEN, THE COMPANY SHALL PAY THE EXECUTIVE THE AMOUNTS, AND PROVIDE THE EXECUTIVE
THE BENEFITS, DESCRIBED IN THIS SECTION 5.1 ("SEVERANCE PAYMENTS") AND SECTION
5.2, IN ADDITION TO ANY PAYMENTS AND BENEFITS TO WHICH THE EXECUTIVE IS ENTITLED
UNDER SECTION 4 HEREOF.
SOLELY FOR PURPOSES OF DETERMINING WHETHER TERMINATION
OCCURRED FOLLOWING A CHANGE IN CONTROL PURSUANT TO THIS AGREEMENT (AND WITHOUT
ANY IMPLICATION THAT A CHANGE IN CONTROL HAS IN FACT OCCURRED), THE EXECUTIVE'S
EMPLOYMENT SHALL BE DEEMED TO HAVE BEEN TERMINATED FOLLOWING A CHANGE IN CONTROL
BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE WITH GOOD REASON, IF (I) THE
EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE COMPANY WITHOUT CAUSE PRIOR TO A
CHANGE IN CONTROL AND SUCH TERMINATION WAS AT THE REQUEST, DIRECTION OR
SUGGESTION, DIRECTLY OR INDIRECTLY, OF A PERSON WHO HAS ENTERED INTO AN
AGREEMENT OR WHO THE COMPANY CONTEMPLATES WILL ENTER INTO AN AGREEMENT WITH THE
COMPANY THE CONSUMMATION OF WHICH WOULD CONSTITUTE A CHANGE IN CONTROL OR, (II)
THE EXECUTIVE TERMINATES HIS EMPLOYMENT FOR GOOD REASON PRIOR TO A CHANGE IN
CONTROL AND THE CIRCUMSTANCE OR EVENT WHICH CONSTITUTES GOOD REASON OCCURS AT
THE REQUEST, DIRECTION OR SUGGESTION OF SUCH PERSON DESCRIBED IN CLAUSE (I).
FOR PURPOSES OF ANY DETERMINATION REGARDING THE APPLICABILITY OF THE
IMMEDIATELY PRECEDING SENTENCE, ANY POSITION TAKEN BY THE EXECUTIVE SHALL BE
PRESUMED TO BE CORRECT UNLESS THE COMPANY ESTABLISHES TO THE COMMITTEE BY CLEAR
AND CONVINCING EVIDENCE THAT SUCH POSITION IS NOT CORRECT.
(A)
IN LIEU OF ANY FURTHER SALARY PAYMENTS TO THE EXECUTIVE FOR PERIODS
SUBSEQUENT TO THE DATE OF TERMINATION AND IN LIEU OF ANY SEVERANCE BENEFIT
OTHERWISE PAYABLE TO THE EXECUTIVE, THE COMPANY SHALL PAY TO THE EXECUTIVE A
LUMP SUM SEVERANCE PAYMENT, IN CASH, EQUAL TO $2,250,000.
(B)
UNTIL FEBRUARY 1, 2010, THE COMPANY SHALL ARRANGE TO PROVIDE THE
EXECUTIVE AND HIS DEPENDENTS LIFE, DISABILITY, ACCIDENT AND HEALTH AND MEDICAL
BENEFITS AND PERQUISITES (INCLUDING, BUT NOT LIMITED TO, EXECUTIVE LIFE
INSURANCE, CLUB MEMBERSHIPS, FINANCIAL PLANNING AND TAX PREPARATION, ANNUAL
PHYSICAL EXAMINATION AND CHARITABLE CONTRIBUTIONS), IN EACH CASE, SUBSTANTIALLY
SIMILAR TO THOSE PROVIDED TO THE EXECUTIVE AND HIS DEPENDENTS IMMEDIATELY PRIOR
TO THE DATE OF TERMINATION OR, IF MORE FAVORABLE TO THE EXECUTIVE, THOSE
PROVIDED TO THE EXECUTIVE AND HIS DEPENDENTS IMMEDIATELY PRIOR TO THE FIRST
OCCURRENCE OF AN EVENT OR CIRCUMSTANCE CONSTITUTING GOOD REASON, AT NO GREATER
COST TO THE EXECUTIVE THAN THE COST TO THE EXECUTIVE IMMEDIATELY PRIOR TO SUCH
DATE OR OCCURRENCE; PROVIDED, HOWEVER, THAT, UNLESS THE EXECUTIVE CONSENTS TO A
DIFFERENT METHOD (AFTER TAKING INTO ACCOUNT THE EFFECT OF SUCH METHOD ON THE
CALCULATION OF "PARACHUTE PAYMENTS" PURSUANT TO SECTION 5.2 HEREOF), SUCH
MEDICAL AND HEALTH BENEFITS SHALL BE PROVIDED THROUGH THE COMPANY'S (OR ANY
SUCCESSOR TO ITS BUSINESS AND/OR ASSETS) GROUP HEALTH PLAN.