VACATION THROUGH THE DATE OF
TERMINATION; AND (III) FOLLOWING SUBMISSION OF PROPER EXPENSE REPORTS BY THE
EMPLOYEE, THE COMPANY SHALL REIMBURSE THE EMPLOYEE FOR ALL EXPENSES REASONABLY
AND NECESSARILY INCURRED BY THE EMPLOYEE IN CONNECTION WITH THE BUSINESS OF THE
COMPANY PRIOR TO THE DATE OF TERMINATION.
THESE PAYMENTS SHALL BE MADE PROMPTLY
UPON TERMINATION AND WITHIN THE PERIOD OF TIME MANDATED BY LAW.
5.
GOLDEN PARACHUTE EXCISE TAX GROSS-UP.
IN THE EVENT THAT THE SEVERANCE AND OTHER BENEFITS PROVIDED FOR IN THIS
AGREEMENT OR OTHERWISE PAYABLE TO EMPLOYEE CONSTITUTE "EXCESS 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 (THE "EXCISE TAX"), THEN EMPLOYEE SHALL RECEIVE (I) A
PAYMENT FROM THE COMPANY SUFFICIENT TO PAY THE EXCISE TAX, AND (II) AN
ADDITIONAL PAYMENT FROM THE COMPANY SUFFICIENT TO PAY THE EXCISE TAX ARISING
FROM THE PAYMENTS MADE BY THE COMPANY TO EMPLOYEE PURSUANT TO THIS SENTENCE.
UNLESS THE COMPANY AND EMPLOYEE OTHERWISE AGREE IN WRITING, THE DETERMINATION OF
EMPLOYEE'S EXCISE TAX LIABILITY AND THE AMOUNT REQUIRED TO BE PAID UNDER THIS
SECTION 5 SHALL BE MADE IN WRITING BY THE COMPANY'S INDEPENDENT PUBLIC
ACCOUNTANTS (THE "ACCOUNTANTS").
IN THE EVENT THAT THE EXCISE TAX INCURRED BY
EMPLOYEE IS DETERMINED BY THE INTERNAL REVENUE SERVICE TO BE GREATER OR LESSER
THAN THE AMOUNT DETERMINED BY THE ACCOUNTANTS, THE COMPANY AND EMPLOYEE AGREE TO
PROMPTLY MAKE SUCH ADDITIONAL PAYMENT, INCLUDING INTEREST AND ANY TAX PENALTIES,
TO THE OTHER PARTY AS THE ACCOUNTANTS REASONABLY DETERMINE IS APPROPRIATE TO
ENSURE THAT THE NET ECONOMIC EFFECT TO EMPLOYEE UNDER THIS SECTION 5, ON AN
AFTER-TAX BASIS, IS AS IF THE EXCISE TAX DID NOT APPLY TO EMPLOYEE.
FOR
PURPOSES OF MAKING THE CALCULATIONS REQUIRED BY THIS SECTION 5, THE ACCOUNTANTS
MAY MAKE REASONABLE ASSUMPTIONS AND APPROXIMATIONS CONCERNING APPLICABLE TAXES
AND MAY RELY ON REASONABLE, GOOD FAITH INTERPRETATIONS OF THE CODE.
THE COMPANY
AND 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 5.
The gross-up payment to which Employee is entitled hereunder shall be paid by
the Company to Employee, in cash and in full, not later than thirty (30)
calendar days following the date Employee becomes subject to the Excise Tax.
6.
SUCCESSORS.
(A)
COMPANY'S SUCCESSORS.
ANY SUCCESSOR TO THE
COMPANY (WHETHER DIRECT OR INDIRECT AND WHETHER BY PURCHASE, LEASE, MERGER,
CONSOLIDATION, LIQUIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE
COMPANY'S BUSINESS AND/OR ASSETS SHALL ASSUME THE COMPANY'S OBLIGATIONS UNDER
THIS AGREEMENT AND AGREE EXPRESSLY TO PERFORM THE COMPANY'S OBLIGATIONS UNDER
THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT AS THE COMPANY WOULD BE
REQUIRED TO PERFORM
4
SUCH OBLIGATIONS IN THE ABSENCE OF A SUCCESSION.
FOR