WHICH, AFTER PAYMENT 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 HERBES IN THE SAME
ECONOMIC POSITION THAT HE WOULD HAVE ENJOYED IF THE EXCISE TAX HAD NOT APPLIED
TO SUCH PAYMENTS.
THE SPECIAL REIMBURSEMENT SHALL BE PAID AS SOON AS
PRACTICABLE FOLLOWING FINAL DETERMINATION OF THE AMOUNT OF THE EXCISE TAX, BUT
IN NO EVENT LATER THAN THE LAST DAY OF HERBES' TAXABLE YEAR FOLLOWING THE
TAXABLE YEAR FOR WHICH THE EXCISE TAX IS DUE.
8.
TERMINATION FOR CAUSE. HERBES' 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 HERBES'
EMPLOYMENT; HABITUAL UNEXCUSED ABSENCE FROM THE
6
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 HERBES WRITTEN NOTICE SPECIFYING THE EFFECTIVE DATE OF SUCH TERMINATION.
UPON THE EFFECTIVE DATE OF SUCH TERMINATION, ANY AND ALL PAYMENTS AND BENEFITS
DUE HERBES 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 ANNUAL BONUS PLAN OR ANY OTHER
INCENTIVE COMPENSATION PLAN.
9.
MAJOR TRANSACTION. IF, DURING THE TERM, THE CORPORATION
CONSUMMATES A MAJOR TRANSACTION AND HERBES IS NOT THE EXECUTIVE VICE PRESIDENT
OF OPERATIONS 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 HERBES SHALL HAVE THE RIGHT TO TERMINATE HIS
EMPLOYMENT UNDER THIS AGREEMENT AND SHALL BE ENTITLED TO THE BENEFITS SET FORTH
IN PARAGRAPH 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.
HERBES SHALL PROVIDE THE CORPORATION WITH WRITTEN
NOTICE OF HIS DESIRE TO TERMINATE HIS EMPLOYMENT UNDER THIS AGREEMENT PURSUANT
TO THIS PARAGRAPH WITHIN NINETY (90) 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, PROVIDED THE CORPORATION HAS NOT CORRECTED
THE BASIS FOR SUCH NOTICE WITHIN THIRTY (30) DAYS AFTER DELIVERY OF SUCH NOTICE
AND FURTHER PROVIDED THAT THE EFFECTIVE DATE OF TERMINATION OF THIS AGREEMENT
SHALL NOT BE MORE THAN ONE YEAR FOLLOWING THE EFFECTIVE DATE OF THE MAJOR