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Exchange Act) of 25% or more of either (i) the then outstanding shares of common stock of theCompany (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the thenoutstanding voting securities of the Company entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); provided, however, that for purposes ofthis subsection (a), the following acquisitions shall not constitute a Change of Control: (i) anyacquisition directly from the Company, (ii) any acquisition by the Company, (iii) any acquisitionby any employee benefit plan (or related trust) sponsored or maintained by the Company or anycorporation controlled by the Company or (iv) any acquisition by any corporation pursuant to atransaction which complies with clauses (i), (ii) and (iii) of subsection (c) of this Section 2; or     (b) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) ceasefor any reason to constitute at least a majority of the Board; provided, however, that anyindividual becoming a director subsequent to the date hereof whose election, or nomination forelection by the Company’s shareholders, was approved by a vote of at least a majority of thedirectors then comprising the Incumbent Board shall be considered as though such individual were amember of the Incumbent Board, but excluding, for this purpose, any such individual whose initialassumption of office occurs as a result of an actual or threatened election contest with respect tothe election or removal of directors or other actual or threatened solicitation of proxies orconsents by or on behalf of a Person other than the Board; or     (c) Consummation of a reorganization, merger or consolidation or sale or other disposition ofall or substantially all of the assets of the Company (a “Business Combination”), in each case,unless, following such Business Combination, (i) all or substantially all of the individuals andentities who were the beneficial owners, respectively, of the Outstanding Company Common Stock andOutstanding Company Voting Securities immediately prior to such Business Combination beneficiallyown, directly or indirectly, more than 50% of, respectively, the then outstanding shares of commonstock and the combined voting power of the then outstanding voting securities entitled to votegenerally in the election of directors, as the case may be, of the corporation resulting from suchBusiness Combination (including, without limitation, a corporation which as a result of suchtransaction owns the Company or all or substantially all of the Company’s assets either directly orthrough one or more subsidiaries) in substantially the same proportions as their ownership,immediately prior to such Business Combination of the Outstanding Company Common Stock andOutstanding Company Voting Securities, as the case may be, (ii) no Person (excluding anycorporation resulting from such Business Combination or any employee benefit plan (or relatedtrust) of the Company or such corporation resulting from such Business Combination) beneficiallyowns, directly or indirectly, 20% or more of, respectively, the then outstanding shares of commonstock of the corporation resulting from such Business Combination or the combined voting power ofthe then outstanding voting securities of such corporation except to the extent that such ownershipexisted prior to the Business Combination and (iii) at least a majority of the members of the boardof directors of the corporation resulting from such Business Combination were members of theIncumbent Board at the time of the execution of the initial agreement, or of the action of theBoard, providing for such Business Combination; or     (d) Approval by the shareholders of the Company of a complete liquidation or dissolution ofthe Company.
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     3. Employment Period. The Company hereby agrees to continue the Executive in itsemploy, and the Executive hereby agrees to remain in the employ of the Company, subject to theterms and conditions of this Agreement, for the period commencing on the Effective Date and endingon the second anniversary of such date (the “Employment Period”).     4. Terms of Employment.     (a) Position and Duties.(i) During the Employment Period, (A) the Executive’s position (including status,offices, titles and reporting requirements), authority, duties and responsibilitiesshall be at least commensurate in all material respects with the most significantof those held, exercised and assigned at any time during the 120 day periodimmediately preceding the Effective Date and (B) the Executive’s services shall beperformed at the location where the Executive was employed immediately precedingthe Effective Date or any office or location less than 35 miles from such location.(ii) During the Employment Period, and excluding any periods of vacation and sickleave to which the Executive is entitled, the Executive agrees to devote reasonableattention and time during normal business hours to the business and affairs of theCompany and, to the extent necessary to discharge the responsibilities assigned tothe Executive hereunder, to use the Executive’s reasonable best efforts to performfaithfully such responsibilities. During the Employment Period it shall not be aviolation of this Agreement for the Executive to (A) serve on corporate, civic orcharitable boards or committees, (B) deliver lectures, fulfill speaking engagementsor teach at educational institutions and (C) manage personal investments, so longas such activities do not significantly interfere with the performance of theExecutive’s responsibilities as an employee of the Company in accordance with thisAgreement. It is expressly understood and agreed that to the extent that any suchactivities have been conducted by the Executive prior to the Effective Date, thecontinued conduct of such activities (or the conduct of activities similar innature and scope thereto) subsequent to the Effective Date shall not thereafter bedeemed to interfere with the performance of the Executive’s responsibilities to theCompany.     (b) Compensation.(i) Base Salary. During the Employment Period, the Executive shall receivean annual base salary (“Annual Base Salary”), which shall be paid at a monthlyrate, at least equal to twelve times the highest monthly base salary paid orpayable, including any base salary which has been earned but deferred, to theExecutive by the Company and its affiliated companies in respect of the twelvemonth period immediately preceding the month in which the Effective Date occurs.Annual Base Salary shall be payable in accordance with the Company’s normal payrollpractices (but not less frequently than monthly). During the Employment Period, theAnnual Base Salary shall be reviewed (for purposes of increase only) no more than12 months after the last salary increase awarded to
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the Executive prior to the Effective Date and thereafter at least annually. Anyincrease in Annual Base Salary shall not serve to limit or reduce any otherobligation to the Executive under this Agreement. Annual Base Salary shall not bereduced after any such increase and the term Annual Base Salary as utilized in thisAgreement shall refer to Annual Base Salary as so increased. As used in thisAgreement, the term “affiliated companies” shall include any company controlled by,controlling or under common control with the Company.(ii) Annual Bonus. In addition to Annual Base Salary, the Executive shallbe awarded, for each fiscal year ending during the Employment Period, an annualbonus (the “Annual Bonus”) in cash at least equal to the arithmetic average of theExecutive’s bonuses (whether paid or deferred) under the Company’s or itspredecessor’s annual incentive plans during the last three full fiscal years priorto the Effective Date or for such lesser period as the Executive has been employedby the Company or its predecessor (annualized in the event that the Executive wasnot employed by the Company for the whole of any such fiscal year), (the “AverageAnnual Bonus”). Each such Annual Bonus shall be paid no later than the end of thethird month of the fiscal year next following the fiscal year for which the AnnualBonus is awarded, unless the Executive shall elect to defer the receipt of suchAnnual Bonus. Without limiting the generality of the foregoing definition, the“Average Annual Bonus” shall include the following components, if any, pursuant tothe Company’s Amended and Restated EVCIP Rules *(*or any successor incentive plan,for so long as any of same shall exist): (a) Cash payouts from VC and IVC awards and the“Bank” payout, subject to the Payout Cap, all at full face value;  (b) Any excess in the Bank discounted at 75% offace value (which shall, for purposes hereof, be deemed to be fullyvested);  (c) 10% of the Bank contributed to the DeferredCompensation Plan, at full face value (which shall, for purposeshereof, be deemed to be fully vested); and  (d) Any deferred bonus under the EVCIP which is invested in stock underthe Company’s Corporate Management Stock Purchase Program, at full facevalue of said bonus (which shall, for purposes hereof, be deemed to befully vested).(iii) Incentive, Savings and Retirement Plans. During the EmploymentPeriod, the Executive shall be entitled to participate in all incentive, savingsand retirement plans, practices, policies and programs applicable generally toother peer executives of the Company and its affiliated companies, but in no eventshall such plans, practices, policies and programs provide the Executive withincentive opportunities (measured with respect to both regular and specialincentive opportunities, to the extent, if any, that such distinction isapplicable), savings opportunities and retirement benefit opportunities, in eachcase, less favorable, in the aggregate, than the most favorable of those providedby the
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Company and its affiliated companies for the Executive under such plans, practices,policies and programs as in effect at any time during the 120-day periodimmediately preceding the Effective Date or if more favorable to the Executive,those provided generally at any time after the Effective Date to other peerexecutives of the Company and its affiliated companies.(iv) Welfare Benefit Plans. During the Employment Period, the Executiveand/or the Executive’s family, as the case may be, shall be eligible forparticipation in and shall receive all benefits under welfare benefit plans,practices, policies and programs provided by the Company and its affiliatedcompanies (including, without limitation, medical, prescription, dental,disability, employee life, group life, accidental death and travel accidentinsurance plans and programs) to the extent applicable generally to other peerexecutives of the Company and its affiliated companies, but in no event shall suchplans, practices, policies and programs provide the Executive with benefits whichare less favorable, in the aggregate, than the most favorable of such plans,practices, policies and programs in effect for the Executive at any time during the120 day period immediately preceding the Effective Date or, if more favorable tothe Executive, those provided generally at any time after the Effective Date toother peer executives of the Company and its affiliated companies.(v) Expenses. During the Employment Period, the Executive shall be entitledto receive prompt reimbursement for all reasonable expenses incurred by theExecutive in accordance with the most favorable policies, practices and proceduresof the Company and its affiliated companies in effect for the Executive at any timeduring the 120 day period immediately preceding the Effective Date or, if morefavorable to the Executive, as in effect generally at any time thereafter withrespect to other peer executives of the Company and its affiliated companies.(vi) Fringe Benefits. During the Employment Period, the Executive shall beentitled to fringe benefits, including, without limitation, tax and financialplanning services, payment of club dues, and, if applicable, use of an automobileand payment of related expenses, in accordance with the most favorable plans,practices, programs and policies of the Company and its affiliated companies ineffect for the Executive at any time during the 120 day period immediatelypreceding the Effective Date or, if more favorable to the Executive, as in effectgenerally at any time thereafter with respect to other peer executives of theCompany and its affiliated companies.(vii) Office and Support Staff. During the Employment Period, the Executiveshall be entitled to an office or offices of a size and with furnishings and otherappointments, and to exclusive personal secretarial and other assistance, at leastequal to the most favorable of the foregoing provided to the Executive by theCompany and its affiliated companies at any time during the 120 day periodimmediately preceding the Effective Date or, if more favorable to the Executive, asprovided generally at any time thereafter with respect to other peer executives ofthe Company and its affiliated companies.
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(viii) Vacation. During the Employment Period, the Executive shall beentitled to paid vacation in accordance with the most favorable plans, policies,programs and practices of the Company and its affiliated companies as in effect forthe Executive at any time during the 120 day period immediately preceding theEffective Date or, if more favorable to the Executive, as in effect generally atany time thereafter with respect to other peer executives of the Company and itsaffiliated companies.     5. Termination of Employment.     (a) Death or Disability. The Executive’s employment shall terminate automatically uponthe Executive’s death during the Employment Period. If the Disability of the Executive occursduring the Employment Period (pursuant to the definition of Disability set forth below), theCompany may give to the Executive written notice in accordance with Section 12(c) of this Agreementof its intention to terminate the Executive’s employment. In such event, the Executive’s employmentwith the Company shall terminate effective on the 30th day after receipt of such notice by theExecutive (the “Disability Effective Date”), provided that, within the 30 days after such receipt,the Executive shall not have returned to full-time performance of the Executive’s duties. Forpurposes of this Agreement, “Disability” shall mean the absence of the Executive from theExecutive’s duties with the Company on a full-time basis for 180 consecutive business days as aresult of incapacity due to mental or physical illness which is determined to be total andpermanent by a physician selected by the Company or its insurers and acceptable to the Executive orthe Executive’s legal representative.     (b) Cause. The Company may terminate the Executive’s employment for Cause. Forpurposes of this Agreement, “Cause” shall mean:(i) the willful and continued failure of the Executive to perform substantially theExecutive’s duties with the Company or one of its affiliates (other than any suchfailure resulting from incapacity due to physical or mental illness), for more than15 days after a written demand for substantial performance is delivered to theExecutive by the Board or the Chief Executive Officer of the Company whichspecifically identifies the manner in which the Board or Chief Executive Officerbelieves that the Executive has not substantially performed the Executive’s duties,or(ii) the willful engaging by the Executive in illegal conduct or gross misconductwhich is materially and demonstrably injurious to the Company.For purposes of this provision, no act or failure to act, on the part of the Executive, shall beconsidered “willful” unless it is done, or omitted to be done, by the Executive in bad faith orwithout reasonable belief that the Executive’s action or omission was in the best interests of theCompany. Any act, or failure to act, based upon authority given pursuant to a resolution dulyadopted by the Board or upon the instructions of the President and Chief Executive Officer of theCompany or based upon the advice of counsel for the Company shall be conclusively presumed to bedone, or omitted to be done, by the Executive in good faith and in the best interests of theCompany. The cessation of employment of the Executive shall not be deemed to be for Cause
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unless and until there shall have been delivered to the Executive a copy of a resolution dulyadopted by the affirmative vote of not less than three-quarters of the entire membership of theBoard at a meeting of the Board called and held for such purpose (after reasonable notice isprovided to the Executive and the Executive is given an opportunity, together with counsel, to beheard before the Board), finding that, in the good faith opinion of the Board, the Executive isguilty of the conduct described in subparagraph (i) or (ii) above, and specifying the particularsthereof in detail.     (c) Good Reason. The Executive’s employment may be terminated by the Executive forGood Reason. For purposes of this Agreement, “Good Reason” shall mean:(i) the assignment to the Executive of any duties inconsistent in any respect withthe Executive’s position (including status, offices, titles and reportingrequirements), authority, duties or responsibilities as contemplated by Section4(a) of this Agreement, or any other action by the Company which results in adiminution in such position, authority, duties or responsibilities, excluding forthis purpose an isolated, insubstantial and inadvertent action not taken in badfaith and which is remedied by the Company within 15 days after receipt of noticethereof given by the Executive;(ii) any failure by the Company to comply with any of the provisions of Section4(b) of this Agreement, other than an isolated, insubstantial and inadvertentfailure not occurring in bad faith and which is remedied by the Company within 15days after receipt of notice thereof given by the Executive;(iii) the Company’s requiring the Executive to be based at any office or locationother than as provided in Section 4(a)(i)(B) hereof or the Company’s requiring theExecutive to travel on Company business to a substantially greater extent thanrequired immediately prior to the Effective Date, which is not remedied by theCompany within 15 days after receipt of notice thereof given by the Executive;(iv) any purported termination by the Company of the Executive’s employmentotherwise than as expressly permitted by this Agreement; or(v) any failure by the Company to comply with and satisfy Section 11(c) of thisAgreement, which is not remedied by the Company within 15 days after receipt ofnotice thereof given by the Executive.     (d) Notice of Termination. Any termination of the Executive’s employment by theCompany or by the Executive shall be communicated by Notice of Termination to the other partyhereto given in accordance with Section 12(c) of this Agreement. For purposes of this Agreement, a“Notice of Termination” means a written notice which (i) indicates the specific terminationprovision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonabledetail the facts and circumstances claimed to provide a basis for termination of the Executive’semployment under the provision so indicated and (iii) if the Date of Termination (as defined below)is other than the date of receipt of such notice, specifies the termination date (which date shallbe not more than thirty days after the giving of such notice). The failure by the Executive or
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the Company to set forth in the Notice of Termination any fact or circumstance whichcontributes to a showing of Good Reason or Cause shall not waive any right of the Executive or theCompany, respectively, hereunder or preclude the Executive or the Company, respectively, fromasserting such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.     (e) Date of Termination. “Date of Termination” means (i) if the Executive’s employmentis terminated by the Company for Cause, or by the Executive for Good Reason, the date of receipt ofthe Notice of Termination or, subject to applicable cure periods, any later date specified therein,as the case may be, (ii) if the Executive’s employment is terminated by the Company other than forCause or Disability, the Date of Termination shall be the date on which the Company notifies theExecutive of such termination and (iii) if the Executive’s employment is terminated by reason ofdeath or Disability, the Date of Termination shall be the date of death of the Executive or theDisability Effective Date, as the case may be.     6. Obligations of the Company upon Termination.     (a) Good Reason; Other Than for Cause. If, during the Employment Period, the Companyshall terminate the Executive’s employment other than for Cause or the Executive shall terminateemployment for Good Reason:(i) the Company shall pay to the Executive in a lump sum in cash within 30 daysafter the Date of Termination the aggregate of the following amounts:     A. the sum of (1) the Executive’s Annual Base Salary through the Date ofTermination to the extent not theretofore paid, (2) any accrued but unpaid AnnualBonus respecting any completed fiscal year ending prior to the Date of Termination,(3) the product of (x) the Average Annual Bonus and (y) a fraction, the numeratorof which is the number of days in the current fiscal year through the Date ofTermination, and the denominator of which is 365 and (4) any compensationpreviously deferred by the Executive (together with any accrued interest orearnings thereon) and any accrued vacation pay, in each case to the extent nottheretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (4)shall be hereinafter referred to as the “Accrued Obligations”). Anything containedherein to the contrary notwithstanding, the timing of payment by the Company of anydeferred compensation shall remain subject to the terms and conditions of theapplicable deferred compensation plan and any payment election previously made bythe Executive; **provided****,****however**, that, if at the time ofTermination, Executive is a “specified employee” within the meaning of Section 409Aof the Internal Revenue Code, as amended, then payments shall not be made beforethe date which is six (6) months after the date of separation from service with theCompany (or, if earlier, the date of the Executive’s death); and     B. the amount equal to the product of (1) one and one-half (1.5), and (2) thesum of (x) the Executive’s Annual Base Salary and (y) the Highest Annual Bonus (ashereinafter defined); and
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(ii) for eighteen (18) months after the Executive’s Date of Termination, or suchlonger period as may be provided by the terms of the appropriate plan, program,practice or policy, the Company shall continue benefits to the Executive and/or theExecutive’s family at least equal to those which would have been provided to themin accordance with the plans, programs, practices and policies described in Section4(b)(iv) of this Agreement if the Executive’s employment had not been terminatedor, if more favorable to the Executive, as in effect generally at any timethereafter with respect to other peer executives of the Company and its affiliatedcompanies and their families, provided, however, that if the Executive becomesreemployed with another employer and is eligible to receive medical or otherwelfare benefits under another employer provided plan, the medical and otherwelfare benefits described herein shall be secondary to those provided under suchother plan during such applicable period of eligibility. For purposes ofdetermining eligibility (but not the time of commencement of benefits) of theExecutive for retiree benefits pursuant to such plans, practices, programs andpolicies, the Executive shall be considered to have remained employed untileighteen (18) months after the Date of Termination and to have retired on the lastday of such period;(iii) the Company shall, at its sole expense as incurred, provide the Executivewith outplacement services in accordance with the Company’s policies with regard tooutplacement then in effect; and(iv) to the extent not theretofore paid or provided, the Company shall timely payor provide to the Executive any other amounts or benefits required to be paid orprovided or which the Executive is eligible to receive under any plan, program,policy or practice or contract or agreement of the Company and its affiliatedcompanies (such other amounts and benefits shall be hereinafter referred to as the“Other Benefits”).     For purposes hereof, the term “Highest Annual Bonus” shall mean the highest of the Executive’sbonuses (whether paid or deferred) under the Company’s or its predecessor’s annual incentive plansduring the last three full fiscal years prior to the Effective Date or for such lesser period asthe Executive has been employed by the Company or its predecessor (annualized in the event that theExecutive was not employed by the Company for the whole of any such fiscal year).     (b) Death. If the Executive’s employment is terminated by reason of the Executive’sdeath during the Employment Period, this Agreement shall terminate without further obligations tothe Executive’s legal representatives under this Agreement, other than for payment of AccruedObligations and the timely payment or provision of Other Benefits. Accrued Obligations shall bepaid to the Executive’s estate or beneficiary, as applicable, in a lump sum in cash within 30 daysof the Date of Termination. With respect to the provision of Other Benefits, the term OtherBenefits as utilized in this Section 6(b) shall include, without limitation, and the Executive’sestate and/or beneficiaries shall be entitled to receive, benefits at least equal to the mostfavorable benefits provided by the Company and affiliated companies to the estates andbeneficiaries of peer executives of the Company and such affiliated companies under such plans,programs, practices and policies relating to death benefits, if any, as in effect with respect toother peer
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executives and their beneficiaries at any time during the 120 day period immediately precedingthe Effective Date or, if more favorable to the Executive’s estate and/or the Executive’sbeneficiaries, as in effect on the date of the Executive’s death with respect to other peerexecutives of the Company and its affiliated companies and their beneficiaries.     (c) Disability. If the Executive’s employment is terminated by reason of theExecutive’s Disability during the Employment Period, this Agreement shall terminate without furtherobligations to the Executive, other than for payment of Accrued Obligations and the timely paymentor provision of Other Benefits. Accrued Obligations shall be paid to the Executive or theExecutive’s legal representative in a lump sum in cash within 30 days of the Date of Termination.With respect to the provision of Other Benefits, the term Other Benefits as utilized in thisSection 6(c) shall include, and the Executive shall be entitled after the Disability Effective Dateto receive, disability and other benefits at least equal to the most favorable of those generallyprovided by the Company and its affiliated companies to disabled executives and/or their familiesin accordance with such plans, programs, practices and policies relating to disability, if any, asin effect generally with respect to other peer executives and their families at any time during the120 day period immediately preceding the Effective Date or, if more favorable to the Executiveand/or the Executive’s family, as in effect at any time thereafter generally with respect to otherpeer executives of the Company and its affiliated companies and their families.     (d) Cause; Other than for Good Reason. If the Executive’s employment shall beterminated for Cause during the Employment Period, this Agreement shall terminate without furtherobligations to the Executive other than the obligation to pay to the Executive (x) his Annual BaseSalary through the Date of Termination, (y) the amount of any compensation previously deferred bythe Executive, and (z) Other Benefits, in each case to the extent theretofore unpaid. If theExecutive voluntarily terminates employment during the Employment Period, excluding a terminationfor Good Reason, this Agreement shall terminate without further obligations to the Executive, otherthan for Accrued Obligations and the timely payment or provision of Other Benefits. In such case,all Accrued Obligations shall be paid to the Executive in a lump sum in cash within 30 days of theDate of Termination.     7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit theExecutive’s continuing or future participation in any plan, program, policy or practice provided bythe Company or any of its affiliated companies and for which the Executive may qualify, nor,subject to Section 12(f), shall anything herein limit or otherwise affect such rights as theExecutive may have under any contract or agreement with the Company or any of its affiliatedcompanies. Amounts which are vested benefits or which the Executive is otherwise entitled toreceive under any plan, policy, practice or program of or any contract or agreement with theCompany or any of its affiliated companies at or subsequent to the Date of Termination shall bepayable in accordance with such plan, policy, practice or program or contract or agreement exceptas explicitly modified by this Agreement.     8. Full Settlement. The Company’s obligation to make the payments provided for in thisAgreement and otherwise to perform its obligations hereunder shall not be affected by any set-off,counterclaim, recoupment, defense or other claim, right or action which the Company may haveagainst the Executive or others. Each and every payment made hereunder by the Company shall befinal, and the Company shall not seek to recover all or any part of such
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payment from the Executive or from whomsoever may be entitled thereto, for any reasonswhatsoever. In no event shall the Executive be obligated to seek other employment or take any otheraction by way of mitigation of the amounts payable to the Executive under any of the provisions ofthis Agreement and such amounts shall not be reduced whether or not the Executive obtains otheremployment. The Company agrees to pay as incurred, to the full extent permitted by law, all legalfees and expenses which the Executive may reasonably incur as a result of any contest by (i) theCompany, provided that the Executive prevails in at least one material issue, (ii) the Executive or(iii) others, of the validity or enforceability of, or liability under, any provision of thisAgreement or any guarantee of performance thereof (including, without limitation, as a result ofany contest by the Executive about the amount of any payment pursuant to this Agreement), plus ineach case interest on any delayed payment at the applicable Federal rate provided for in Section7872(f) (2) (A) of the Internal Revenue Code of 1986, as amended (the “Code”).     9. Certain Additional Payments by the Company.     (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below,in the event it shall be determined that any payment or distribution by the Company to or for thebenefit of the Executive (whether paid or payable or distributed or distributable pursuant to theterms of this Agreement or otherwise, but determined without regard to any additional paymentsrequired under this Section 9) (a “Payment”) would be subject to the excise tax imposed by Section4999 of the Code or any interest or penalties are incurred by the Executive with respect to suchexcise tax (such excise tax, together with any such interest and penalties, are hereinaftercollectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive anadditional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive ofall taxes (including any interest or penalties imposed with respect to such taxes), including,without limitation, any income taxes (and any interest and penalties imposed with respect thereto)and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-UpPayment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisionsof this Section 9(a), if it shall be determined that the Executive is entitled to a Gross-UpPayment, but that the Payments do not exceed 110% of the greatest amount (the “Reduced Amount”)that could be paid to the Executive such that the receipt of Payments would not give rise to anyExcise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in theaggregate, shall be reduced to the Reduced Amount.     (b) Subject to the provisions of Section 9(c), all determinations required to be made underthis Section 9, including whether and when a Gross-Up Payment is required and the amount of suchGross-Up Payment and the assumptions to be utilized in arriving at such determination, shall bemade by such certified public accounting firm as may be designated by the Company (the “AccountingFirm”) which shall provide detailed supporting calculations both to the Company and the Executivewithin 15 business days of the receipt of notice from the Executive that there has been a Payment,or such earlier time as is requested by the Company. In the event that the Accounting Firm isserving as accountant or auditor for the individual, entity or group effecting the Change ofControl, the Company shall appoint another nationally recognized accounting firm to make thedeterminations required hereunder (which accounting firm shall then be referred to as theAccounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely bythe Company. Any Gross-Up Payment, as determined pursuant to this Section 9, shall be paid by theCompany to the Executive within five days of the
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receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shallbe binding upon the Company and the Executive. As a result of the uncertainty in the application ofSection 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 made by the Company should have beenmade (“Underpayment”), consistent with the calculations required to be made hereunder. In the eventthat the Company exhausts its remedies pursuant to Section 9(c) and the Executive thereafter isrequired to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of theUnderpayment that has occurred and any such Underpayment shall be promptly paid by the Company toor for the benefit of the Executive.     (c) The Executive shall notify the Company in writing of any claim by the Internal RevenueService that, if successful, would require the payment by the Company of the Gross-Up Payment. Suchnotification shall be given as soon as practicable but no later than ten business days after theExecutive is informed in writing of such claim and shall apprise the Company of the nature of suchclaim and the date on which such claim is requested to be paid. The Executive shall not pay suchclaim prior to the expiration of the 30-day period following the date on which it gives such noticeto the Company (or such shorter period ending on the date that any payment of taxes with respect tosuch claim is due). If the Company notifies the Executive in writing prior to the expiration ofsuch period that it desires to contest such claim, the Executive shall:(i) give the Company any information reasonably requested by the Company relatingto such claim,(ii) take such action in connection with contesting such claim as the Company shallreasonably request in writing from time to time, including, without limitation,accepting legal representation with respect to such claim by an attorney reasonablyselected by the Company,(iii) cooperate with the Company in good faith in order effectively to contest suchclaim, and(iv) 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 (includingadditional interest and penalties) incurred in connection with such contest and shall indemnify andhold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (includinginterest and penalties with respect thereto) imposed as a result of such representation and paymentof costs and expenses. Without limitation on the foregoing provisions of this Section 9(c), theCompany shall control all proceedings taken in connection with such contest and, at its soleoption, may pursue or forgo any and all administrative appeals, proceedings, hearings andconferences with the taxing authority in respect of such claim and may, at its sole option, eitherdirect the Executive to pay the tax claimed and sue for a refund or contest the claim in anypermissible manner, and the Executive agrees to prosecute such contest to a determination beforeany administrative tribunal, in a court of initial jurisdiction and in one or more appellatecourts, as the Company shall determine; provided, however, that if the Company directs theExecutive to pay such claim and sue for a refund, the Company shall advance the amount of suchpayment to the Executive, on an interest-free basis and shall
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indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax(including interest or penalties with respect thereto) imposed with respect to such advance or withrespect to any imputed income with respect to such advance; and further provided that any extensionof the statute of limitations relating to payment of taxes for the taxable year of the Executivewith respect to which such contested amount is claimed to be due is limited solely to suchcontested amount. Furthermore, the Company’s control of the contest shall be limited to issues withrespect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitledto settle or contest, as the case may be, any other issue raised by the Internal Revenue Service orany other taxing authority.     (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant toSection 9(c), the Executive becomes entitled to receive any refund with respect to such claim, theExecutive shall (subject to the Company’s complying with the requirements of Section 9(c)) promptlypay to the Company the amount of such refund (together with any interest paid or credited thereonafter taxes applicable thereto). If, after the receipt by the Executive of an amount advanced bythe Company pursuant to Section 9(c), a determination is made that the Executive shall not beentitled to any refund with respect to such claim and the Company does not notify the Executive inwriting of its intent to contest such denial of refund prior to the expiration of 30 days aftersuch determination, then such advance shall be forgiven and shall not be required to be repaid andthe amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Paymentrequired to be paid.     10. Confidential Information. The Executive shall hold in a fiduciary capacity for thebenefit of the Company all secret or confidential information, knowledge or data relating to theCompany or any of its affiliated companies, and their respective businesses, which shall have beenobtained by the Executive during the Executive’s employment by the Company or any of its affiliatedcompanies and which shall not be or become public knowledge (other than by acts by the Executive orrepresentatives of the Executive in violation of this Agreement). After termination of theExecutive’s employment with the Company, the Executive shall not, without the prior written consentof the Company or as may otherwise be required by law or legal process, communicate or divulge anysuch information, knowledge or data to anyone other than the Company and those designated by it. Inno event shall an asserted violation of the provisions of this Section 10 constitute a basis fordeferring or withholding any amounts otherwise payable to the Executive under this Agreement.     11. Successors.     (a) This Agreement is personal to the Executive and without the prior written consent of theCompany shall not be assignable by the Executive otherwise than by will or the laws of descent anddistribution. This Agreement shall inure to the benefit of and be enforceable by the Executive’slegal representatives.     (b) This Agreement shall inure to the benefit of and be binding upon the Company and itssuccessors and assigns.     (c) The Company will require any successor (whether direct or indirect, by purchase, merger,consolidation or otherwise) to all or substantially all of the business and/or assets of theCompany to assume expressly and agree to perform this Agreement in the same
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manner and to the same extent that the Company would be required to perform it if no suchsuccession had taken place. As used in this Agreement, “Company” shall mean the Company ashereinbefore defined and any successor to its business and/or assets as aforesaid which assumes andagrees to perform this Agreement by operation of law, or otherwise.     12. Miscellaneous.     (a) This Agreement shall be governed by and construed in accordance with the laws of the Stateof Delaware, without reference to principles of conflict of laws. Any legal action, suit orproceeding arising out of or relating to this Agreement shall be instituted in the state or federalcourts in the State of Delaware and the parties agree not to assert, in any action, suit orproceeding by way of motion, as a defense or otherwise, any claim that either party is notpersonally subject to the jurisdiction of such court, or that such action, suit or proceeding isbrought in an inconvenient forum, or that the venue is improper or that the subject matter hereofcannot be enforced in such court. The parties hereby irrevocably submit to the jurisdiction of anysuch court in any such action, suit or proceeding.     (b) The captions of this Agreement are not part of the provisions hereof and shall have noforce or effect. This Agreement may not be amended or modified otherwise than by a writtenagreement executed by the parties hereto or their respective successors and legal representatives.     (c) All notices and other communications hereunder shall be in writing and shall be given byhand delivery to the other party, by FedEx or other commercial overnight courier or by registeredor certified mail, return receipt requested, postage prepaid, addressed as follows:If to the Executive:5535 Lexington Woods Lane