FOLLOWING A CHANGE OF CONTROL.
IN THE EVENT THE EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE EXECUTIVE FOR GOOD
REASON OR BY THE COMPANY WITHOUT CAUSE AT ANY TIME DURING THE TWELVE (12) MONTH
PERIOD FOLLOWING THE EFFECTIVE DATE OF A CHANGE OF CONTROL, THE EXECUTIVE SHALL
BE ENTITLED TO THE BENEFITS SET FORTH IN SECTIONS 9(D)(I), 9(D)(II), 9(D)(III)
AND 9(D)(IV); PROVIDED, HOWEVER, THAT REFERENCES TO THE CLAUSE "TWO (2)" IN
SECTION 9(D)(III) SHALL BE CHANGED TO "THREE (3)"; AND PROVIDED, FURTHER, THAT
IF, FOLLOWING A CHANGE OF CONTROL, THE EXECUTIVE IS GRANTED ADDITIONAL EQUITY
AWARDS, NOTHING IN THIS SECTION 10(D) WILL PROHIBIT THE EXECUTIVE FROM VESTING
IN SUCH EQUITY AWARDS UPON A SUBSEQUENT TERMINATION OF EMPLOYMENT FOR GOOD
REASON OR WITHOUT CAUSE.
11.
Gross-Up Payment
(A)
IF, DURING THE EMPLOYMENT PERIOD, THERE IS
A CHANGE IN OWNERSHIP OR CONTROL OF THE COMPANY THAT CAUSES ANY PAYMENT, BENEFIT
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 OR OTHERWISE, BUT DETERMINED WITHOUT REGARD TO ANY ADDITIONAL PAYMENTS
REQUIRED UNDER THIS SECTION 11) (A "PAYMENT") TO BE SUBJECT TO THE EXCISE TAX
(THE "EXCISE TAX") IMPOSED BY SECTION 4999 OF THE CODE, THEN THE EXECUTIVE SHALL
BE ENTITLED TO RECEIVE AN ADDITIONAL PAYMENT (A "GROSS-UP PAYMENT") IN AN AMOUNT
SUCH THAT AFTER PAYMENT BY THE EXECUTIVE OF ALL TAXES, INCLUDING ANY INCOME
TAXES AND EXCISE TAX IMPOSED UPON THE GROSS-UP PAYMENT, THE EXECUTIVE WILL
RETAIN AN AMOUNT OF THE GROSS-UP PAYMENT EQUAL TO THE EXCISE TAX IMPOSED UPON
THE PAYMENTS.
(B)
DETERMINATION OF THE GROSS-UP PAYMENT.
SUBJECT TO THE PROVISIONS OF THIS SECTION 11, ALL DETERMINATIONS REQUIRED TO BE
MADE UNDER THIS SECTION 11, INCLUDING WHETHER AND WHEN A GROSS-UP PAYMENT IS
REQUIRED AND THE AMOUNT OF SUCH GROSS-UP PAYMENT AND THE ASSUMPTIONS TO BE
UTILIZED IN ARRIVING AT SUCH DETERMINATION, SHALL BE MADE BY A CERTIFIED PUBLIC
ACCOUNTING FIRM DESIGNATED BY THE EXECUTIVE AND REASONABLY ACCEPTABLE TO THE
COMPANY (THE "ACCOUNTING FIRM"), WHICH SHALL PROVIDE DETAILED SUPPORTING
CALCULATIONS BOTH TO THE COMPANY AND THE EXECUTIVE WITHIN FIFTEEN (15) BUSINESS
DAYS OF THE RECEIPT OF NOTICE FROM THE EXECUTIVE THAT THERE HAS BEEN A PAYMENT
WITH RESPECT TO WHICH THE EXECUTIVE IN GOOD FAITH BELIEVES A GROSS-UP PAYMENT
MAY BE DUE UNDER THIS SECTION 11, 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 SECTION 11,
SHALL BE PAID BY THE COMPANY TO THE EXECUTIVE WITHIN FIVE (5) DAYS OF THE LATER
OF (A) THE DUE DATE FOR THE PAYMENT OF ANY EXCISE TAX AND (B) THE RECEIPT OF THE
ACCOUNTING FIRM'S DETERMINATION. ANY DETERMINATION BY THE ACCOUNTING FIRM SHALL
BE BINDING UPON THE COMPANY AND THE EXECUTIVE. AS A RESULT OF
20
THE UNCERTAINTY IN THE APPLICATION OF SECTION 4999 OF THE CODE AT THE TIME OF