NOT BE SUBJECT TO ATTACHMENT,
GARNISHMENT, SEIZURE, OFFSET OR SEQUESTRATION BY ANY CREDITOR.
6.
EFFECT OF CHANGE OF CONTROL.
(A)
PAYMENT OF RETIREMENT BENEFIT.
IMMEDIATELY
UPON THE OCCURRENCE OF A CHANGE OF CONTROL (AS DEFINED IN BELOW), THE COMPANY
WILL MAKE A SINGLE SUM CASH PAYMENT TO EXECUTIVE EQUAL TO THE ACTUARIAL PRESENT
VALUE OF THE REMAINING PAYMENTS DESCRIBED IN PARAGRAPH 5(A).
SUCH PAYMENT WILL
CONSTITUTE A COMPLETE DISCHARGE OF THE COMPANY'S OBLIGATIONS UNDER PARAGRAPH
5(A) OF THIS AGREEMENT.
FOR THIS PURPOSE (I) ACTUARIAL PRESENT VALUE WILL BE
DETERMINED USING MORTALITY FACTORS AND INTEREST RATES THAT WOULD THEN BE
APPLICABLE TO CALCULATE LUMP SUM PRESENT VALUES UNDER SECTION 417(E) OF THE
INTERNAL REVENUE CODE, AND (II) THE TIME FOR DETERMINING THE INTEREST RATE WILL
BE THE CALENDAR MONTH PRECEDING THE CHANGE OF CONTROL.
AS USED HEREIN, "CHANGE
OF CONTROL" WILL HAVE THE SAME MEANING AS DEFINED IN THAT CERTAIN CHANGE OF
CONTROL EMPLOYMENT AGREEMENT BETWEEN EXECUTIVE AND THE COMPANY DATED AS OF
FEBRUARY 13, 2001 (THE "COC AGREEMENT").
(B)
TERMINATION OF CONSULTING ENGAGEMENT.
IF A
CHANGE OF CONTROL OCCURS DURING EXECUTIVE'S ENGAGEMENT AS A CONSULTANT
HEREUNDER, SUCH CONSULTING ENGAGEMENT WILL THEN TERMINATE AUTOMATICALLY.
UPON
SUCH TERMINATION, EXECUTIVE WILL RECEIVE AN IMMEDIATE LUMP SUM CASH PAYMENT
EQUAL TO THE AMOUNT THAT WOULD HAVE BEEN PAYABLE TO HIM UNDER SECTION 6.04(A)(I)
OF THE COC AGREEMENT IF: (I) HE HAD BEEN EMPLOYED BY THE COMPANY AT THE TIME OF
THE CHANGE OF CONTROL AT A BASE SALARY EQUAL TO THE AMOUNT SET FORTH IN
PARAGRAPH 3(B) HEREOF, AND (II) HIS REMAINING PERIOD OF EMPLOYMENT HAD BEEN
DETERMINED UNDER SECTION 2.01 OF THE COC AGREEMENT.
7.
COOPERATION AND PARTICIPATION IN
LITIGATION.
DURING EXECUTIVE'S CONSULTING ENGAGEMENT HEREUNDER AND FOLLOWING
THE TERMINATION OF THAT ENGAGEMENT, EXECUTIVE WILL COOPERATE WITH REASONABLE
REQUESTS OF THE COMPANY TO PARTICIPATE IN THE PREPARATION FOR, RESPONSE TO,
PROSECUTION OF AND/OR DEFENSE OF ANY PENDING, ACTUAL OR THREATENED LITIGATION
INVOLVING THE COMPANY. THE COMPANY WILL REIMBURSE EXECUTIVE FOR ALL REASONABLE
EXPENSES INCURRED BY EXECUTIVE AS A RESULT OF SUCH COOPERATION, WILL PROVIDE
REASONABLE ADVANCE NOTICE OF ANY NEED FOR EXECUTIVE'S ASSISTANCE UNDER THIS
PARAGRAPH AND WILL EXERCISE ITS BEST EFFORTS TO PREVENT EXECUTIVE'S OBLIGATIONS
UNDER THIS PARAGRAPH FROM INTERFERING WITH HIS OTHER PERSONAL AND PROFESSIONAL
OBLIGATIONS.
8.
INDEMNIFICATION.
THE COMPANY WILL
INDEMNIFY AND DEFEND EXECUTIVE FOR ACTS PERFORMED (OR OMISSIONS MADE) IN HIS
CAPACITY AS A DIRECTOR, OFFICER, CONSULTANT OR EMPLOYEE OF THE COMPANY AND ANY
OF ITS SUBSIDIARIES (WITHOUT REGARD TO WHETHER SUCH ACTS OR OMISSIONS
3
OCCURRED BEFORE OR AFTER THE RESIGNATION DATE) TO THE SAME EXTENT AS PROVIDED TO
ACTIVE DIRECTORS AND OFFICERS AND WILL MAINTAIN INSURANCE TO FUND THIS INDEMNITY
FOR SO LONG AS DIRECTORS' AND OFFICERS' INSURANCE IS MAINTAINED FOR ACTIVE
DIRECTORS OR OFFICERS OF THE COMPANY.
9.
ASSIGNMENT.
NEITHER THE COMPANY NOR
EXECUTIVE SHALL HAVE THE RIGHT TO ASSIGN THIS AGREEMENT OR ANY OBLIGATION
HEREUNDER WITHOUT THE WRITTEN CONSENT OF THE OTHER, EXCEPT THAT IN CONNECTION
WITH THE MERGER, CONSOLIDATION OR LIQUIDATION OF THE COMPANY