DEATH OR DISABILITY WITHIN 3 MONTHS AFTER A DISPOSITION.
IN THE EVENT (I) THE
EMPLOYEE'S EMPLOYMENT IS TERMINATED FOR ANY REASON PRIOR TO A CHANGE OF CONTROL,
OR (II) WITHIN THREE MONTHS AFTER A DISPOSITION (A) EMPLOYEE VOLUNTARILY
TERMINATES HIS EMPLOYMENT AND SUCH TERMINATION IS NOT A VOLUNTARY TERMINATION
FOR GOOD REASON, (B) EMPLOYEE IS INVOLUNTARILY TERMINATED FOR CAUSE, OR (C)
EMPLOYEE'S EMPLOYMENT TERMINATES DUE TO HIS DEATH OR DISABILITY (AS DEFINED
HEREIN), THEN THE EMPLOYEE SHALL BE ENTITLED TO RECEIVE SEVERANCE AND ANY OTHER
BENEFITS ONLY AS MAY THEN BE ESTAB­LISHED UNDER THE COMPANY'S EXISTING SEVERANCE
AND BENEFITS PLANS OR PURSUANT TO OTHER WRITTEN AGREEMENTS WITH THE COMPANY.
(C)
NO DUAL BENEFITS.
IN THE EVENT THAT
EMPLOYEE RECEIVES BENEFITS PURSUANT TO SECTION 3 HEREOF, HE SHALL NOT BE
ENTITLED TO RECEIVE SEVERANCE BENEFITS PURSUANT TO THE EMPLOYMENT AGREEMENT.
4.
GOLDEN PARACHUTE EXCISE TAX FULL
GROSS-UP.
IN THE EVENT THAT THE BENEFITS PROVIDED FOR IN THIS AGREEMENT OR
OTHERWISE PAYABLE TO THE EMPLOYEE CONSTITUTE "PARACHUTE PAYMENTS" WITHIN THE
MEANING OF SECTION 280G OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE") AND WILL BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE
CODE, THEN THE EMPLOYEE SHALL RECEIVE (I) A PAYMENT FROM THE COMPANY SUFFICIENT
TO PAY SUCH EXCISE TAX, PLUS (II) AN ADDITIONAL PAYMENT FROM THE COMPANY
SUFFICIENT TO PAY THE EXCISE TAX AND FEDERAL AND STATE INCOME AND EMPLOYMENT
TAXES ARISING FROM THE PAYMENTS MADE BY THE COMPANY TO EMPLOYEE PURSUANT TO THIS
SENTENCE.
UNLESS THE COMPANY AND THE EXECUTIVE OTHERWISE AGREE IN WRITING, THE
DETERMINATION OF EXECUTIVE'S EXCISE TAX LIABILITY AND THE AMOUNT REQUIRED TO BE
PAID UNDER THIS SECTION 4 SHALL BE MADE IN WRITING BY THE COMPANY'S INDEPENDENT
AUDITORS WHO ARE PRIMARILY USED BY THE COMPANY IMMEDI­ATELY PRIOR TO THE CHANGE
OF CONTROL (THE "ACCOUNTANTS").
FOR PURPOSES OF MAKING THE CALCULATIONS
REQUIRED BY THIS SECTION 4, THE ACCOUNTANTS MAY MAKE REASONABLE ASSUMPTIONS AND
APPROXIMATIONS CONCERNING APPLICABLE TAXES AND MAY RELY ON REASONABLE, GOOD
FAITH INTERPRETATIONS CONCERNING THE APPLICATION OF SECTIONS 280G AND 4999 OF
THE CODE.
THE COMPANY AND THE EMPLOYEE SHALL FURNISH TO THE ACCOUNTANTS SUCH
INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY REASONABLY REQUEST IN ORDER TO
MAKE A DETERMINATION UNDER THIS SECTION.
THE COMPANY SHALL BEAR ALL COSTS THE
ACCOUNTANTS MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS
CONTEMPLATED BY THIS SECTION 4.
5.
DEFINITION OF TERMS.
THE FOLLOWING
TERMS REFERRED TO IN THIS AGREEMENT SHALL HAVE THE FOLLOWING MEANINGS:
3
(A)
ANNUAL COMPENSATION.
"ANNUAL COMPENSATION"
SHALL MEAN AN AMOUNT EQUAL TO THE SUM OF (I) THE EMPLOYEE'S COMPANY ANNUAL BASE
SALARY AS IN EFFECT IMMEDIATELY PRECEDING THE CHANGE OF CONTROL, AND (II) 100%
OF
THE EMPLOYEE'S TARGET BONUS.
(B)
TARGET BONUS.
"TARGET BONUS" SHALL MEAN
EMPLOYEE'S ANNUAL BONUS, ASSUM­ING 100% "ON TARGET" SATISFACTION OF ANY
OBJECTIVE OR SUBJECTIVE PERFORMANCE MILESTONES.
(C)
CAUSE.
"CAUSE" SHALL MEAN (I) AN ACT OF
PERSONAL DISHONESTY TAKEN BY THE EMPLOYEE IN CONNECTION WITH HIS
RESPONSIBILITIES AS AN EMPLOYEE AND INTENDED