payments equal to the lesser of a) the reasonable
legal fees and expenses incurred by the Covered Executive in contesting the IRS
assessment of the 280G Excise Tax or b) twenty thousand dollars ($20,000). Such
monthly payments will be subject to the six (6) month delay applicable to Key
Employees under Section 3.3.
If the Excise Tax is contested, with counsel reasonably satisfactory to the
Employer, then the Employer will pay to the Covered Executive the 280G Gross-Up
Payment (including any interest or penalties attributable thereto) upon the
earlier of ten (10) days after 1) the entry of a final judgment, decree, or
other order by a court of competent jurisdiction that the Covered Executive is
liable for the 280G Excise Tax, or 2) a mutual determination of the Covered
Executive and the Employer not to proceed further with the contest. If the
Covered Executive is a Key Employee, payment of the 280G Excise Tax will be
subject to a six (6) month delay as provided in Section 3.3.
3.3
TERMINATION DISTRIBUTIONS TO KEY EMPLOYEES.
DISTRIBUTIONS UNDER THE ESP THAT ARE PAYABLE TO A COVERED EXECUTIVE WHO IS A KEY
EMPLOYEE ON AND AFTER JANUARY 1, 2005, ON ACCOUNT OF A QUALIFYING TERMINATION
WILL BE DELAYED FOR A PERIOD OF SIX (6) MONTHS FOLLOWING SUCH COVERED
EXECUTIVE'S QUALIFYING TERMINATION. UPON THE EXPIRATION OF SUCH SIX (6) MONTH
PERIOD, AMOUNTS THAT WOULD HAVE BEEN PAID TO THE COVERED EXECUTIVE DURING SUCH
SIX (6) MONTH PERIOD, WILL BE PAID TO HIM IN THE FORM OF A LUMP SUM PAYMENT AND
THE REMAINING AMOUNTS PAYABLE TO THE COVERED EXECUTIVE UNDER THE ESP WILL BE
PAID WITH RESPECT TO THE REMAINDER OF THE SEVERANCE PERIOD PURSUANT TO THE TERMS
OF THIS ARTICLE III (I.E., IN THE CASE OF SEVERANCE PAY PURSUANT TO SECTION
3.1(A), SUCH SEVERANCE PAY WILL BE PAID ON A BI-WEEKLY BASIS FOR THE REMAINDER
OF THE SEVERANCE PERIOD). THIS SIX (6) MONTH RESTRICTION WILL NOT APPLY, OR WILL
CEASE TO APPLY, WITH RESPECT TO DISTRIBUTIONS BY REASON OF THE DEATH OF THE
COVERED EXECUTIVE PURSUANT TO SECTION 3.4.
3.4
DISTRIBUTIONS ON ACCOUNT OF DEATH OF THE
COVERED EXECUTIVE DURING THE SEVERANCE PERIOD. EXCEPT AS PROVIDED OTHERWISE IN
THE COVERED EXECUTIVE'S ESP AGREEMENT, IF A COVERED EXECUTIVE DIES DURING THE
SEVERANCE PERIOD SPECIFIED IN
SECTION 3.1(A) OR SECTION 3.2(A), THE FOLLOWING BENEFITS WILL BE PAYABLE:
(A)
SEVERANCE PAY. ANY REMAINING SEVERANCE PAY
PAYABLE TO THE COVERED EXECUTIVE AS OF THE DATE OF HIS DEATH WILL CONTINUE TO BE
PAID TO THE COVERED EXECUTIVE'S ESTATE PURSUANT TO SECTION 3.1(A) OR 3.2(A), AS
APPLICABLE.
(B)
OTHER ACCRUED OBLIGATIONS. ANY UNPAID BASE
SALARY, TIME OFF AND ANY OTHER ACCRUED AND UNPAID OBLIGATIONS THAT REMAIN
OUTSTANDING AS OF THE DATE OF THE COVERED EXECUTIVE'S DEATH WILL BE PAID TO THE
COVERED EXECUTIVE'S ESTATE PURSUANT TO SECTION 3.1(B).
(C)
BONUS. ANY UNPAID BONUS DESCRIBED UNDER
SECTION 3.1(C) THAT REMAINS OUTSTANDING AS OF THE DATE OF THE COVERED
EXECUTIVE'S DEATH WILL BE PAID TO HIS ESTATE PURSUANT TO