OF ANY FEDERAL, STATE
AND LOCAL TAXES, INCLUDING ANY FURTHER EXCISE TAX UNDER CODE SECTION 4999, WITH
RESPECT TO OR RESULTING FROM THE SPECIAL REIMBURSEMENT, WOULD PLACE LERNER IN
THE SAME ECONOMIC POSITION THAT HE WOULD HAVE ENJOYED IF THE EXCISE TAX HAD NOT
APPLIED TO SUCH PAYMENTS.
8.
TERMINATION FOR CAUSE. LERNER'S
EMPLOYMENT UNDER THIS AGREEMENT MAY BE TERMINATED BY THE CORPORATION,
IMMEDIATELY UPON WRITTEN NOTICE IN THE EVENT AND ONLY IN THE EVENT OF THE
FOLLOWING CONDUCT:
CONVICTION OF A FELONY OR ANY OTHER CRIME INVOLVING MORAL
TURPITUDE, WHETHER OR NOT RELATING TO LERNER'S EMPLOYMENT; HABITUAL UNEXCUSED
ABSENCE FROM THE FACILITIES OF THE CORPORATION; HABITUAL SUBSTANCE ABUSE;
WILLFUL DISCLOSURE OF MATERIAL CONFIDENTIAL INFORMATION OF THE CORPORATION
AND/OR ITS SUBSIDIARIES OR OTHER AFFILIATES; INTENTIONAL VIOLATION OF CONFLICTS
OF INTEREST POLICIES ESTABLISHED BY THE BOARD OF DIRECTORS; WANTON OR WILLFUL
FAILURE TO COMPLY WITH THE LAWFUL WRITTEN DIRECTIONS OF THE BOARD OR OTHER
SUPERIORS; AND WILLFUL MISCONDUCT OR GROSS NEGLIGENCE THAT RESULTS IN DAMAGE TO
THE INTERESTS OF THE CORPORATION AND ITS SUBSIDIARIES OR OTHER AFFILIATES.
SHOULD ANY OF THESE SITUATIONS OCCUR, THE BOARD OF DIRECTORS AND/OR THE CHIEF
EXECUTIVE OFFICER WILL PROVIDE LERNER WRITTEN NOTICE SPECIFYING THE EFFECTIVE
DATE OF SUCH
6
TERMINATION. UPON THE EFFECTIVE DATE OF SUCH TERMINATION, ANY AND ALL PAYMENTS
AND BENEFITS DUE LERNER UNDER THIS AGREEMENT SHALL CEASE EXCEPT FOR ANY ACCRUED
AND VESTED BENEFITS PAYABLE UNDER THE CORPORATION'S EMPLOYMENT AND BENEFIT
POLICIES, INCLUDING ANY UNPAID AMOUNTS OWED UNDER THE INCENTIVE COMPENSATION
PLAN.
9.
MAJOR TRANSACTION. IF, DURING THE TERM,
THE CORPORATION CONSUMMATES A MAJOR TRANSACTION AND LERNER IS NOT THE VICE
PRESIDENT, GENERAL COUNSEL AND SECRETARY WITH DUTIES AND RESPONSIBILITIES
SUBSTANTIALLY EQUIVALENT TO THOSE DESCRIBED HEREIN AND/OR IS NOT ENTITLED TO
SUBSTANTIALLY THE SAME BENEFITS AS SET FORTH IN THIS AGREEMENT, THEN LERNER
SHALL HAVE THE RIGHT TO TERMINATE HIS EMPLOYMENT UNDER THIS AGREEMENT AND SHALL
BE ENTITLED TO THE BENEFITS SET FORTH IN SUBPARAGRAPH 7(A), EXCEPT THAT THE
SEVERANCE PERIOD SHALL MEAN THE PERIOD FROM THE DATE OF TERMINATION OF
EMPLOYMENT TO THE SECOND (2ND) ANNIVERSARY OF THE DATE OF SUCH TERMINATION.
LERNER SHALL PROVIDE THE CORPORATION WITH WRITTEN NOTICE OF HIS DESIRE TO
TERMINATE HIS EMPLOYMENT UNDER THIS AGREEMENT PURSUANT TO THIS PARAGRAPH WITHIN
ONE HUNDRED AND TWENTY (120) DAYS OF THE EFFECTIVE DATE OF THE MAJOR TRANSACTION
AND THE SEVERANCE PERIOD SHALL COMMENCE AS OF THE EFFECTIVE DATE OF THE
TERMINATION OF THIS AGREEMENT.
FOR PURPOSES OF THIS PARAGRAPH, "MAJOR
TRANSACTION" SHALL MEAN THE SALE OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF
THE CORPORATION, OR A MERGER, CONSOLIDATION, SALE OF STOCK OR SIMILAR
TRANSACTION OR SERIES OF RELATED TRANSACTIONS WHEREBY A THIRD PARTY (INCLUDING A
"GROUP" AS DEFINED IN SECTION 13(D)(3) OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED) ACQUIRES BENEFICIAL OWNERSHIP, DIRECTLY OR INDIRECTLY, OF SECURITIES
OF THE CORPORATION REPRESENTING OVER FIFTY PERCENT (50%) OF THE COMBINED VOTING
POWER OF THE CORPORATION; PROVIDED, HOWEVER, THAT A MAJOR TRANSACTION SHALL NOT
IN ANY EVENT INCLUDE A