WITH RESPECT TO THE PLAN, EXCEPT WITH REGARD TO MATTERS AS TO
WHICH HE OR SHE SHALL BE ADJUDGED IN SUCH ACTION TO BE LIABLE FOR WILLFUL
MISCONDUCT OR FRAUD IN THE PERFORMANCE OF HIS OR HER DUTIES.
ARTICLE V
AMENDMENT AND TERMINATION
5.1
AMENDMENT AND TERMINATION.
THE COMPANY RESERVES THE RIGHT TO AMEND
OR TERMINATE, IN WHOLE OR IN PART, ANY OR ALL OF THE PROVISIONS OF THE PLAN BY
ACTION OF THE BOARD (OR A DULY AUTHORIZED COMMITTEE THEREOF) AT ANY TIME AND FOR
ANY REASON, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO AMEND THE PROVISIONS OF
THE PLAN AT ANY TIME SOLELY TO COMPLY WITH THE REQUIREMENTS OF CODE SECTION 409A
AND TO AVOID THE IMPOSITION OF AN EXCISE TAX UNDER CODE SECTION 409A ON ANY
PAYMENT TO BE MADE HEREUNDER (A "409A AMENDMENT"); PROVIDED, THAT (I) ONCE A
PARTICIPANT BECOMES ENTITLED TO RECEIVE A SEVERANCE BENEFIT OR ENHANCED
SEVERANCE BENEFIT HEREUNDER, THE PLAN MAY NOT BE AMENDED TO REDUCE SUCH
BENEFITS, AND (II) OTHER THAN FOR A 409A AMENDMENT, THE COMPANY SHALL NOT AMEND
OR TERMINATE THE PLAN AT ANY TIME AFTER (A) THE OCCURRENCE OF A CHANGE IN
CONTROL OR (B) THE DATE THE COMPANY ENTERS INTO A DEFINITIVE AGREEMENT WHICH, IF
CONSUMMATED, WOULD RESULT IN A
11
CHANGE IN CONTROL, UNLESS THE POTENTIAL CHANGE IN CONTROL IS ABANDONED (AS
PUBLICLY ANNOUNCED BY THE COMPANY), IN EITHER CASE UNTIL TWENTY-FOUR (24) MONTHS
AFTER THE OCCURRENCE OF A CHANGE IN CONTROL, PROVIDED THAT ALL SEVERANCE
BENEFITS AND ENHANCED SEVERANCE BENEFITS THAT ARE IN PAY STATUS UNDER THE PLAN
SHALL CONTINUE TO BE PAID IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE
PLAN.
ARTICLE VI
SUCCESSORS
6.1
SUCCESSORS.
FOR PURPOSES OF THE PLAN, THE COMPANY SHALL INCLUDE
ANY AND ALL SUCCESSORS AND ASSIGNEES, WHETHER DIRECT OR INDIRECT, BY PURCHASE,
MERGER, CONSOLIDATION OR OTHERWISE, TO ALL OR SUBSTANTIALLY ALL THE BUSINESS OR
ASSETS OF THE COMPANY AND SUCH SUCCESSORS AND ASSIGNEES SHALL PERFORM THE
COMPANY'S OBLIGATIONS UNDER THE PLAN, IN THE SAME MANNER AND TO THE SAME EXTENT
THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH SUCCESSION OR
ASSIGNMENT HAD TAKEN PLACE.
IN THE EVENT THE SURVIVING CORPORATION IN ANY
TRANSACTION TO WHICH THE COMPANY IS A PARTY IS A SUBSIDIARY OF ANOTHER
CORPORATION, THEN THE ULTIMATE PARENT CORPORATION OF SUCH SURVIVING CORPORATION
SHALL CAUSE THE SURVIVING CORPORATION TO PERFORM THE PLAN IN THE SAME MANNER AND
TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IF NO SUCH
SUCCESSION OR ASSIGNMENT HAD TAKEN PLACE.
IN SUCH EVENT, THE TERM "COMPANY," AS
USED IN THE PLAN, SHALL MEAN THE COMPANY, AS HEREINBEFORE DEFINED AND ANY
SUCCESSOR OR ASSIGNEE (INCLUDING THE ULTIMATE PARENT CORPORATION) TO THE
BUSINESS OR ASSETS WHICH BY REASON HEREOF BECOMES BOUND BY THE TERMS AND
PROVISIONS OF THE PLAN.
ARTICLE VII
MISCELLANEOUS
7.1
PAYMENT NOT SALARY.
ANY SEVERANCE BENEFITS PAYABLE UNDER THE PLAN
SHALL NOT BE DEEMED SALARY OR OTHER COMPENSATION TO THE PARTICIPANT FOR THE
PURPOSES OF