AGAINST THE COMPANY, ITS SUBSIDIARIES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS
AND DIRECTORS, IN A FORM PREPARED BY THE COMPANY AND REASONABLY ACCEPTABLE TO
EXECUTIVE.
(D)
NONQUALIFYING TERMINATION.
IF DURING THE TERMINATION PERIOD THE
EMPLOYMENT OF EXECUTIVE SHALL TERMINATE OTHER THAN BY REASON OF A QUALIFYING
TERMINATION, THEN THE COMPANY SHALL PAY TO EXECUTIVE WITHIN THIRTY (30) DAYS
FOLLOWING THE DATE OF TERMINATION, A LUMP-SUM CASH AMOUNT EQUAL TO THE SUM OF
EXECUTIVE'S BASE SALARY THROUGH THE DATE OF TERMINATION AND ANY BONUS AMOUNTS
WHICH HAVE BECOME PAYABLE, TO THE EXTENT NOT THERETOFORE PAID OR DEFERRED, AND
ANY ACCRUED VACATION PAY, TO THE EXTENT NOT THERETOFORE PAID.
THE COMPANY MAY
MAKE SUCH ADDITIONAL PAYMENTS, AND PROVIDE SUCH ADDITIONAL BENEFITS, TO
EXECUTIVE AS THE COMPANY AND EXECUTIVE MAY AGREE IN WRITING, OR TO WHICH
EXECUTIVE MAY BE ENTITLED UNDER THE COMPENSATION AND BENEFIT PLANS, POLICIES,
AND ARRANGEMENTS OF THE COMPANY.
4.
CERTAIN ADDITIONAL PAYMENTS BY THE
COMPANY.
(A)
IF IT IS DETERMINED (AS HEREAFTER PROVIDED) THAT ANY PAYMENT OR
DISTRIBUTION BY THE COMPANY TO OR FOR THE BENEFIT OF EXECUTIVE, WHETHER PAID OR
PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO THE TERMS OF THIS AGREEMENT
OR OTHERWISE PURSUANT TO OR BY REASON OF ANY OTHER AGREEMENT, POLICY, PLAN,
PROGRAM OR ARRANGEMENT, INCLUDING WITHOUT LIMITATION ANY STOCK OPTION, STOCK
APPRECIATION RIGHT OR SIMILAR RIGHT, OR THE LAPSE OR TERMINATION OF ANY
RESTRICTION ON OR THE VESTING OR EXERCISABILITY OF ANY OF THE FOREGOING (EACH A
"PAYMENT"), WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE
CODE (OR ANY SUCCESSOR PROVISION THERETO) OR TO ANY SIMILAR TAX IMPOSED BY STATE
OR LOCAL LAW, OR ANY INTEREST OR PENALTIES WITH RESPECT TO SUCH EXCISE TAX (SUCH
TAX OR TAXES, TOGETHER WITH ANY SUCH INTEREST AND PENALTIES, ARE HEREAFTER
COLLECTIVELY REFERRED TO AS THE "EXCISE TAX"), THEN EXECUTIVE WILL BE ENTITLED
TO RECEIVE AN ADDITIONAL PAYMENT OR PAYMENTS (A "GROSS-UP PAYMENT") IN AN AMOUNT
SUCH THAT, AFTER PAYMENT BY EXECUTIVE OF ALL TAXES (INCLUDING ANY INTEREST OR
PENALTIES IMPOSED WITH RESPECT TO SUCH TAXES), INCLUDING ANY EXCISE TAX, IMPOSED
UPON THE GROSS-UP PAYMENT, EXECUTIVE RETAINS AN AMOUNT OF THE GROSS-UP PAYMENT
EQUAL TO THE EXCISE TAX IMPOSED UPON THE PAYMENTS. NOTWITHSTANDING THE PREVIOUS
SENTENCE, IF THE AGGREGATE VALUE OF THE PAYMENTS FOR PURPOSES OF SECTIONS 280G
AND 4099 OF THE CODE EQUALS OR EXCEEDS 100%, BUT IS NOT GREATER THAN 110%, OF
THE SAFE HARBOR AMOUNT, THEN NO GROSS-UP PAYMENT SHALL BE PAYABLE TO EXECUTIVE
AND THE AGGREGATE AMOUNT OF PAYMENTS PAYABLE TO EXECUTIVE SHALL BE REDUCED IN
THE MANNER SELECTED BY EXECUTIVE TO THE SAFE HARBOR AMOUNT.
7
(B)
SUBJECT TO THE PROVISIONS OF SECTION 4(F) HEREOF, ALL
DETERMINATIONS REQUIRED TO BE MADE UNDER THIS SECTION 4, INCLUDING WHETHER AN
EXCISE TAX IS PAYABLE BY EXECUTIVE AND THE AMOUNT OF SUCH EXCISE TAX AND WHETHER
A GROSS-UP PAYMENT IS REQUIRED AND THE AMOUNT OF SUCH GROSS-UP PAYMENT, WILL BE
MADE BY THE PUBLIC ACCOUNTING FIRM THAT IS RETAINED BY THE