Exhibit 10.(a)


 


2/9/09


 


MANAGEMENT AGREEMENT


 


THIS
MANAGEMENT AGREEMENT (the “Agreement”) is entered into effective October 30,
2008, by and between Bemis Company, Inc., a Missouri corporation (the “Company”)
and (INSERT EXECUTIVE NAME), (the “Executive”).


 


WHEREAS,
the Executive is a key member of the management of the Company and has devoted
substantial skill and effort to the affairs of the Company; and


 


WHEREAS,
the Company and its shareholders wish to continue to obtain the benefits of the
Executive’s services and attention to the affairs of the Company; and


 


WHEREAS,
the Company recognizes that, as a publicly-held corporation, it is subject to
the ongoing risk of a change of control, and that the adverse personal
consequences of a change of control may distract Executive or encourage
Executive’s premature termination of employment to the detriment of the Company
and its shareholders; and


 


WHEREAS,
it is desirable and in the best interests of the Company and its shareholders
to take steps that will allow the Executive to make judgments and advise the
Company with respect to proposed changes of control without regard to the
possible adverse personal consequences of such events, and to provide an
inducement for the Executive to remain in the service of the Company prior to
any proposed or anticipated change of control, and to remain in the service of
the Company after any change of control to the extent necessary to facilitate
an orderly transition; and


 


WHEREAS,
the Executive desires to obtain appropriate protection in the event of an
actual or anticipated change of control; and


 


WHEREAS,
the Company recognizes that it is important to Executive to receive prompt and
certain payment of any amounts which become due under this Agreement;


 


NOW
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the Company and the Executive hereby agree as
follows:


 


1.             Defined Terms.  Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in Appendix A.


 


2.             Duration.  This Agreement establishes certain rights and
obligations in the event Executive has a Qualifying Event (as defined in Section 5
below).  Unless earlier terminated or
modified, which in either case can be done only by mutual written consent of
the parties, this Agreement shall continue in effect until either (i) the
benefits due and payable under this Agreement have been paid in full or (ii) the
Executive’s employment with the Company terminates under circumstances that do
not entitle Executive to any benefits under this Agreement.


 


3.             Prior Agreements.  Any prior agreement entered into by and
between Executive and the Company that was titled “Management Agreement” and
that, among other things, provided compensation upon the occurrence of a “Change
in Control Event,” is hereby terminated. 
Except as otherwise provided herein, this Agreement supersedes any such “Management
Agreement” and the portion or portions of any and all other agreements entered
into prior to the effective date of 


 


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this
Agreement relating to severance pay and post-employment welfare benefits due to
Executive in the event Executive has a Qualifying Event.  Nothing in this Agreement shall adversely
affect any rights Executive may have to equity-based compensation (including
but not limited to stock options, equity units, and restricted stock),
long-term incentive compensation, supplemental retirement benefits, deferred
compensation that is not severance pay, and benefits under any employee benefit
plan (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended), all of which shall be administered
after a Qualifying Event in accordance with the terms of the applicable plan documents
and agreements and without regard to this Agreement.


 


4.             No Employment Contract.  This Agreement shall not be construed as
creating an express or implied contract of employment.  Except as otherwise agreed in writing between
the Executive and the Company, the Executive’s employment shall be “at will”
and Executive shall not have any right to be retained in the employ of the
Company and its affiliates.


 


5.             Qualifying Event.  The Executive shall be deemed to have had a “Qualifying
Event” if prior to attaining age 65:


 


(a)           the Executive has an
Involuntary Termination or Constructive Involuntary Termination on, or within
36 months after, the date of a Change of Control Event;


 


(b)           the Executive has an
Involuntary Termination or Constructive Involuntary Termination within three
months prior to the date of a Change of Control Event; or


 


(c)           the Executive has an
Involuntary Termination or Constructive Involuntary Termination (i) less
than twelve months prior to the date of a Change of Control Event or (ii) while
a Change of Control Event is under serious consideration (whether or not it
actually occurs), unless (in either case) the Company can establish that the
Executive’s Involuntary Termination or Constructive Involuntary Termination was
for reasons unrelated to such Change of Control Event.


 


Whether
a Qualifying Event has occurred shall be determined separately with respect to
each Change of Control Event and each event constituting a Constructive
Involuntary Termination or Involuntary Termination.  If the event constituting a Constructive
Involuntary Termination is a failure by the Company to obtain assumption of
this Agreement by any successor as contemplated by Section 12 of this
Agreement, the date on which the succession became effective shall be deemed
the date of the Qualifying Event. 
Amounts shall not be paid under Sections 6 and 7 of this Agreement for
more than one Qualifying Event.


 


For
purposes of subsection (c) above, a Change of Control Event shall be
deemed to be “under serious consideration” at any time after negotiations with
respect to the possible Change of Control Event have commenced (including, but
not limited to, negotiations prior to the execution of a non-binding letter of
intent) and at any time after the Company receives direct or indirect notice of
a Person’s intent to cause an event that would, if it occurred, result in a
Change of Control Event.  Serious
consideration as described in the preceding sentence shall be deemed to end on
the earliest of the date on which such negotiations are abandoned, the Company
receives direct or indirect notice that such Person has abandoned efforts to
cause the event that would be a Change of Control Event, or the relevant Change
of Control Event actually occurs.


 


6.             Compensation and Benefits through
Date of Termination.  If the
Executive has a Qualifying Event, Company shall immediately pay Executive (a) the
full amount of Executive’s 


 


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salary
through the date of Executive’s Qualifying Event to the extent not previously
paid, and (b) the product of (i) an amount equal to Executive’s
target annual bonus for the fiscal year of the Company in which the Qualifying
Event occurs and (ii) a fraction, the numerator of which is the number of
days in the current fiscal year through and including the date of the Executive’s
Qualifying Event and the denominator of which is 365.  In addition, in the event of Executive’s
Qualifying Event, Company shall also, to the extent not previously paid or
provided, pay or provide Executive with all other amounts and benefits that
Executive has accrued or is eligible to receive through the date of such
Qualifying Event under any plan, program, policy, practice or arrangement of
the Company and/or its affiliates (including, but not limited to, welfare
benefits and perquisites).


 


7.             Change of Control Severance
Payments.  If the
Executive has a Qualifying Event, the Executive also shall be entitled:


 


(a)           to immediately receive from
the Company a cash payment in an amount equal to two times the sum of (i) the
Executive’s salary for the calendar year last preceding the date of Executive’s
Qualifying Event or, if higher, the Executive’s annual salary rate in effect
immediately prior to such Qualifying Event, (ii) the Executive’s target
annual bonus for the fiscal year of the Company in which the Qualifying Event
occurs or, if higher, the Executive’s highest annual bonus for the five-year
period ending with the full calendar year (or if such bonuses are determined on
the basis of a fiscal year, the full fiscal year) last preceding the date of
Executive’s Qualifying Event, and (iii) 30 percent of the annual salary
used in (i) above, which amount is intended to serve as an estimate of the
annual value of the fringe benefits and other perquisites to which Executive
was entitled immediately prior to the Qualifying Event; and


 


(b)           for twenty-four months after
the Qualifying Event, to participate in any health, disability and life
insurance plan or program in which Executive was entitled to participate
immediately prior to the Qualifying Event as if he were an employee of the
Company during such twenty-four month period; provided, however, that in the
event that Executive cannot participate in any such health, disability or life
insurance plan or program, the Company, at its sole cost and expense, shall
arrange to provide the Executive with benefits no less favorable to Executive
than those which Executive would have been entitled to receive if Executive had
continued to participate in such plan or program.


 


The
compensation and benefits described above in this Section 7 shall be
subject to the following:


 


(1)           For purposes of subsection (a) above,
the Executive’s salary, annual salary rate, target annual bonus and highest
annual bonus shall be the gross amounts of such compensation determined without
regard to any deductions, deferrals or withholding.


 


(2)           If Executive’s Qualifying
Event occurs after the month in which the Executive    attains age 63, the amount in subsection (a) above
shall be determined by substituting for “two” a    fraction, the numerator of which is the number of
whole and partial calendar months in the period beginning with the month in
which the Executive’s Qualifying Event occurs and ending with the month in
which the Executive attains age 65, and the denominator of which is 12.


 


(3)           If Executive’s Qualifying
Event occurs after the month in which the Executive    attains age 63, the number of months referred to in
subsection (c) above shall be determined by substituting for “twenty-four”
the number of whole and partial calendar months in


 


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the
period beginning with the month in which the Executive’s Qualifying Event
occurs and ending with the month in which the Executive attains age 65.


 


(4)           The sum of the amounts
payable under subsections (a) and (b) above shall be reduced by any
severance pay which the Executive receives from the Company under any other
policy or agreement of the Company on account of Executive’s Qualifying Event.


 


(5)           For purposes of subsection (b) above,
a health plan or program shall include any separate dental, vision,
prescription drug, or other health-related benefit.


 


(6)           If immediate payment of any
amounts payable pursuant to subsection (a) above would violate Section 409A
of the Code or Treas. Reg. 1.409A-3(i)(2), payment of those amounts shall be
delayed until the earliest time at which payment of those amounts can be made
without such violation.


 


8.             Excise Tax Adjustment.  If it shall be determined that a Payment
would make the Executive liable for any Excise Tax, the Executive shall be
entitled to receive a Gross-Up Payment. 
Notwithstanding the preceding sentence, if it shall be determined that
the total “parachute payments” (within the meaning of Section 280G of the
Code) made to Executive in connection with Executive’s Qualifying Event,
including those made pursuant to this Agreement, exceed by 10% or less the
maximum amount of the total parachute payments that could be paid to the
Executive without incurring any Excise Tax, then no Gross-Up Payment shall be
made to the Executive and the Payments in the aggregate shall be reduced by the
amount of such excess.  Executive shall
have at least 10 calendar days after receiving notice from the Accounting Firm
that such a reduction is necessary to specify what components of the Payment
shall not be paid in order to achieve the required reduction.  If Executive fails to give timely
instructions regarding such reduction, reductions shall be taken first from
Executive’s cash compensation under this Agreement.


 


9.             Late Payment.  Any amount payable under
this Agreement that is not paid within ten calendar days after it becomes due
shall bear interest from the date it became due through the date of payment at
the “prime rate” (the base annual lending rate used by a plurality of the
nation’s largest banks) as reported in the Wall St. Journal for the date on
which the payment was due (or if that is not a date on which the prime rate is
so reported, the then current prime rate as most recently reported) plus 5%,
compounded monthly.


 


10.           Legal Fees.  The Company shall pay all legal fees and
expenses (including but not limited to attorneys’ fees and court costs)
reasonably incurred by the Executive in connection with efforts by or on behalf
of the Executive to obtain or enforce any right or benefit provided by or
claimed under this Agreement, regardless of the ultimate outcome or resolution
of such claims.  Such legal fees and
expenses shall be paid within ten calendar days after Executive’s written
request for payment.  Payments made after
such tenth day shall incur interest at the rate set forth in Section 9
above.  Company’s payment of Executive’s
legal fees and expenses shall not give Company any right to select or to
approve counsel retained by Executive. 
No dispute regarding the reasonableness of such fees and expenses shall
authorize or excuse their late payment.


 


11.           Mitigation Not Required.  Executive shall not be required to mitigate
the amount of any payment or other benefit provided for in this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment or
other benefit provided for in this Agreement be reduced by any compensation
earned by the Executive as the result of employment by another employer after
termination, or otherwise.


 


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12.           Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the successors, legal representatives and assigns of
the parties hereto; provided, however, that the Executive shall not have any
right to assign, pledge or otherwise dispose of or transfer any interest in
this Agreement or any payments hereunder, whether directly or indirectly or in
whole or in part, without the written consent of the Company.  The Company will require any successor
(whether direct or indirect, by purchase of a majority of the outstanding
voting stock of the Company or all or substantially all of the assets of the Company,
or by merger, consolidation or otherwise), by agreement in form and substance
satisfactory to the Executive, to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.  Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach
of this Agreement, shall constitute a Constructive Involuntary Termination, and
shall be treated as a Qualifying Event entitling the Executive to the
compensation and benefits described in Sections 6 and 7 of this Agreement,
unless such failure is remedied within 10 calendar days after Company receives
written notice thereof.  As used in this
Agreement, Company shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which is required to
execute and deliver the Agreement provided for in this Section 12, or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.


 


13.           Governing Law.  This Agreement shall be construed in
accordance with the laws of the State of Minnesota, applied without giving
effect to any choice of law provisions thereof.


 


14.           Notices.  All notices, requests and demands given to or
made pursuant hereto shall be in writing and shall be delivered or mailed to
any such party at its address which:


 


(a)                                 In the case of the Company
shall be:

Bemis Company, Inc.

One Neenah Center, 4th Floor

PO Box 669

Neenah, WI 54957

Attn: General Counsel


 


(b)                                In the case of Executive
shall be:

(INSERT EXECUTIVE NAME)

(INSERT STREET ADDRESS)

(INSERT CITY, STATE, ZIP)


 


Either
party may, by notice hereunder, designate a changed address.  Any notice, if mailed properly addressed,
postage prepaid, registered or certified mail, shall be deemed to have been
given on the registered date or that date stamped on the certified mail
receipt.


 


15.           Severability.  In the event that any portion of this
Agreement is held to be invalid or unenforceable for any reason, it is hereby
agreed that such invalidity or unenforceability shall not affect the other
portions of this Agreement and that the remaining covenants, terms and
conditions or portions hereof shall remain in full force and effect, and any
court of competent jurisdiction may so modify the objectionable provision as to
make it valid, reasonable and enforceable. 
In the event that any benefits to the Executive provided in this
Agreement are held to be unavailable to the Executive as a matter of law, the
Executive shall be entitled after a Qualifying Event to the remaining benefits
available under this Agreement, or if better, severance benefits at least as 


 


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favorable
to Executive (when aggregated with the benefits under this Agreement that are
actually received by the Executive), as the most advantageous severance
benefits made available by the Company to employees of comparable position and
seniority to the Executive during the five-year period prior to Executive’s
Qualifying Event or the Change of Control Event, whichever happens first.


 


16.           Effect of Code §409A.  This Agreement shall be construed in
accordance with any applicable requirements of Code §409A.


 


IN
WITNESS WHEREOF, the parties hereto have executed the Agreement as of the day
and year first above written.


 


 


	
  EXECUTIVE

  	
   

  	
  BEMIS
  COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  Henry J. Theisen

  
	
   

  	
   

  	
  Its:
  President and Chief Executive Officer

  



 


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APPENDIX A


TO MANAGEMENT AGREEMENT


 


DEFINITIONS


 


As
used in this Agreement the capitalized terms not otherwise defined shall have
the meanings ascribed to them below.


 


Accounting
Firm


 


The
term “Accounting Firm” shall mean a nationally recognized certified public
accounting firm designated by the Executive.


 


Cause


 


“Cause”
shall mean, and be limited to, (i) willful and gross neglect of duties by
the Executive that has not been substantially corrected within 30 days after
Executive’s receipt from Company of written notice describing the neglect and
the steps necessary to substantially correct it, or (ii) an act or acts
committed by the Executive constituting a felony and substantially detrimental
to the Company or its reputation.


 


Change
of Control Event


 


A
“Change of Control Event” shall be deemed to have occurred if any of the
following occur:


 


(1) 
Any “Person” (as defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended, or any successor statute thereto (the Exchange Act)
acquires or becomes a beneficial owner (as defined in Rule 13d-3 or any
successor rule under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined voting power
of the Company’s then outstanding securities entitled to vote generally in the
election of directors (“Voting Securities”) or 20% or more of the outstanding
shares of common stock of the Company (“Common Stock”), provided, however, that
the following shall not constitute a “Change of Control Event.”


 


(a)           any acquisition or
beneficial ownership by the Company or a subsidiary of the Company;


 


(b)           any acquisition or
beneficial ownership by any employee benefit plan (or related trust) sponsored
or maintained by the Company or one or more of its subsidiaries;


 


(c)           any transaction with respect
to which, immediately following such acquisition, more than 80% respectively,
of (i) the combined voting power of the Company’s then outstanding
Securities and (ii) the Common Stock is then beneficially owned, directly
or indirectly, by all or substantially all of the persons who beneficially
owned Voting Securities and Common Stock respectively, of the Company
immediately prior to such transaction in substantially the same proportions as
their ownership prior to such acquisition;


 


(2)           Continuing Directors shall
not constitute a majority of the members of the Board of Directors of the
Company.  Continuing Directors shall
mean: (a) individuals who, on the date


 


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hereof,
are directors of the Company, (b) individuals elected as directors of the
Company subsequent to the date hereof for whose election proxies shall have
been solicited by the Board of Directors of the Company, or (c) any
individual elected or appointed by the Board of Directors of the Company to
fill vacancies on the Board of Directors of the Company caused by death or
resignation (but not by removal) or to fill newly-created directorships,
provided that a Continuing Director shall not include an individual whose
initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the threatened election or removal of
directors (or other actual or threatened solicitation of proxies or consents)
by or on behalf of any person other than the Board of Directors of the Company;


 


(3)           Consummation of a
reorganization, merger or consolidation of the Company (other than a merger or
consolidation with a subsidiary of the Company), unless immediately following
such reorganization, merger or consolidation, all or substantially all of the
persons who were the beneficial owners, respectively, of Voting Securities and
Common Stock immediately prior to such reorganization, merger or consolidation
beneficially own, directly or indirectly, more than 80% respectively of (i) the
combined voting power of the then outstanding Voting Securities entitled to
vote generally in the election of directors, and (ii) the then outstanding
shares of Common Stock of the corporation resulting from such reorganization,
merger or consolidation in substantially the same proportions as their
ownership of the Voting Securities and Common Stock, as the case may be,
immediately prior to such reorganization, merger or consolidation;


 


(4)           Approval by the shareholders
of the Company of (i) a complete liquidation or dissolution of the Company
or (ii) the sale or other disposition of all or substantially all of the
assets of the Company (in one or a series of transactions), other than to a
corporation with respect to which, immediately following such a sale or other
disposition, more than 80% respectively, of (i) the combined voting power
of the then outstanding Voting Securities of such corporation entitled to vote
generally in the election of directors, and (ii) the then outstanding
shares of Common Stock of such corporation is then beneficially owned, directly
or indirectly, by all or substantially all of the persons who were the
beneficial owners respectively of the Voting Securities and Common Stock
immediately prior to such sale or other disposition in substantially the same
proportions as their ownership of the Voting Securities and Common Stock, as
the case may be, immediately prior to such sale or other disposition;


 


(5)           The Company enters into a
letter of intent, an agreement in principle or a definitive agreement relating
to a “Change of Control Event” described in Subparagraphs (1), (2), (3) or
(4) hereof that ultimately results in such a “Change of Control Event”, or
a tender or exchange offer or proxy contest is commenced which ultimately
results in such a “Change of Control of Event”.


 


Notwithstanding
anything stated above, a “Change of Control Event” shall not be deemed to occur
with respect to the Executive if the acquisition or beneficial ownership of the
20% or greater interest referred to in Subparagraph (1) is by the
Executive or by a group, acting in concert, that includes the Executive.


 


Code


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended.


 


Constructive
Involuntary Termination


 


Any
of the six occurrences below shall constitute a “Constructive Involuntary
Termination”:


 


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(1)           Reduction of the Executive’s
title, duties, responsibilities or authority, other than for “Cause” or on
account of “Disability”;


 


(2)           Reduction of the Executive’s
annual base salary;


 


(3)           Reduction of the aggregate
benefits under the Company’s pension, profit sharing, retirement, life
insurance, medical, health and accident, disability, bonus and incentive plans
and other employee benefit plans and arrangements or reduction of the number of
paid vacation days to which the Executive is entitled;


 


(4)           Company fails to obtain
assumption of this Agreement by any successor as contemplated by Section 12
of the Agreement;


 


(5)           Company requires Executive
to perform his primary duties at a location that is more than 25 miles further
from Executive’s primary residence than the location at which the Executive
performs his primary duties on the effective date of this Agreement (or, if
Executive changes his primary residence, that is more than 25 miles further
from Executive’s primary residence after such change than the location at which
the Executive performed his primary duties at the time of such change); or


 


(6)           A termination of employment
with the Company by the Executive after any of the occurrences in Subparagraphs
(1) through (5) above.


 


The
foregoing definition of Constructive Involuntary Termination shall be subject
to the following:


 


(i)            Notwithstanding the above, “Constructive
Involuntary Termination” shall not include an inadvertent failure to obtain
assumption of this Agreement that is remedied by the Company within 10 calendar
days after its receipt of notice thereof.


 


(ii)           If the Executive’s duties,
responsibilities or authority prior to a Change in Control Event relate to the
Company as a whole, rather than to a specific business or operating unit (e.g.,
as in the case of the Company’s Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, General Counsel or a Vice President with
authority for an aspect of the Company’s business that is not limited to any
particular business or operational unit, such as the Vice President of Human
Resources), then a reduction described in subparagraph (1) above shall be
deemed to occur if such duties, responsibilities or authority do not extend
after the Change in Control Event to the entire successor organization.  If the Executive’s duties, responsibilities
or authority prior to a Change in Control Event relate exclusively to a
specific business or operating unit of the Company, then a reduction described
in subparagraph (1) shall be deemed to occur if such duties,
responsibilities or authority after the Change in Control Event do not extend
after the Change in Control Event to all or substantially all of the same
business or operating unit.


 


(iii)          Notwithstanding the above,
if Executive believes there are grounds for a “Constructive Involuntary
Discharge” under (1), (2), (3), (5) or (6), Executive must notify the
Company within 30 days after Executive becomes aware of such
circumstances.  “Constructive Involuntary
Discharge” shall not occur without such notice and shall not include any
circumstances that are remedied by the Company within 30 days after receiving
such notice.


 


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Disability


 


“Disability”
shall be a condition entitling the Executive to benefits under Bemis’ Long Term
Disability Plan.


 


Equity
Unit


 


“Equity
Unit” shall mean a unit awarded under a long-term incentive compensation plan
maintained by the Company, such as the Bemis Company, Inc. 2007 Stock
Incentive Plan, that is, or entitles the award recipient to receive, a share of
common stock of the Company (regardless of whether such unit is subject to a
risk of forfeiture).


 


Excise
Tax


 


“Excise
Tax” shall mean the excise tax imposed on Executive by Section 4999 of the
Code or any successor provision thereto, and any interest and penalties
incurred by the Executive with respect to such excise tax.


 


Fair
Market Value


 


“Fair
Market Value” of a share of the Company’s common stock as of a particular day
shall mean the closing price of a share of the Company’s common stock on the
New York Stock Exchange on such day, or if no sale has been made on such
exchange on such day, on the last preceding day on which any such sale was
made.


 


Gross-Up
Payment


 


(1)           “Gross-Up Payment” shall
mean an amount sufficient to enable the Executive to pay all of the following
amounts: (i) any income or employment taxes payable by the Executive on
the Gross-Up Payment, (ii) any excise taxes imposed by Section 4999
of the Code on any Payments to the Executive (including any imposed on the
Gross-Up Payment), (iii) any interest and penalties on the taxes in (i) and
(ii).


 


(2)           Subject to the provisions of
Subparagraph (3) below, all determinations required to be made under Section 8
of the Agreement, including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment, the assumptions to be utilized in arriving
at such determination, and the determination regarding whether Payments need to
be reduced, shall be made by the Accounting Firm, which shall provide detailed
supporting calculations both to the Company and the Executive within 15
business days after the receipt of notice from the Executive that there has been
a Payment, or such earlier time as is requested by the Company.  All fees and expenses of the Accounting Firm
shall be borne solely by the Company. 
Any Gross-Up Payment, as determined pursuant to this Agreement, shall be
paid by the Company to the Executive within five days after the receipt of the
Accounting firm’s determination.  If the
Accounting Firm determines that no Excise Tax is payable by the Executive, it
shall furnish the Executive with a written opinion that failure to report the
Excise Tax on the Executive’s applicable federal income tax return would not
result in the imposition of a negligence or similar penalty.  Any determination by the Accounting Firm
shall be binding upon the Company and the Executive.  As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been


 


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made
by the Company should have been made (“Underpayment”), consistent with the
calculations required to be made hereunder. In the event that the Company
exhausts its remedies pursuant to this Agreement and the Executive thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment (plus any additional interest and penalties attributable to the
Underpayment) shall be promptly paid by the Company to or for the benefit of
the Executive.


 


(3)           The Executive shall notify
the Company in writing of any claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of a Gross-Up
Payment.  Such notification shall be
given as soon as practicable but not later than ten business days after the
Executive is informed in writing of such claim (provided that any delay in so
informing the Company within such ten business day period shall not affect the
obligations of the Company under this Agreement, except to the extent that such
delay materially and adversely affects the Company) and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid.  The Executive shall
not pay such claim prior to the expiration of the 30-day period following the
date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due).  If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:


 


(a)                                  give the
Company any information reasonably requested by the Company relating to such
claim,


 


(b)                                 take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company.


 


(c)                                  cooperate with
the Company in good faith in order to effectively contest such claim, and


 


(d)                                 permit the
Company to participate in any proceedings relating to such claim;


 


provided,
however, that the Company shall bear and pay directly all costs and expenses
(including attorneys fees, additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or other tax (including
interest and penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses. 
Without limitation on the foregoing provisions of this Paragraph, the
Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the Executive
to pay the tax claimed and sue for a refund or contest the claim in any
permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or other
tax (including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and further provided that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect
to which such contested 


 


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amount
is claimed to be due is limited solely to such contested amount.  Furthermore, the Company’s control of the contest
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or contest, as
the case may be, any other issue raised by the Internal Revenue Service or any
other taxing authority.


 


(4)           If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Subparagraph (3) above,
the Executive becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company’s complying with the
requirements of this Subparagraph (4), promptly pay to the Company the amount
of such refund (together with any interest paid or credited thereon after taxes
applicable thereto).  If, after the
receipt by the Executive of an amount advanced by the Company pursuant to
Subparagraph (3) above, a determination is made that the Executive shall
not be entitled to any refund with respect to such claim and the Company does
not notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.


 


Involuntary
Termination


 


“Involuntary
Termination” shall mean a termination by the Company of the Executive’s
employment that is not a termination for “Cause” and that is not on account of
the death or “Disability” of the Executive.


 


Payment(s)


 


A
“Payment” is any payment or distribution by the Company to or for the benefit
of the Executive whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement, any stock option, equity unit,
restricted stock agreement or otherwise, but determined without regard to any
Gross-Up Payments.


 


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