DEATH, AS
APPLICABLE.
(B)
PAYMENT PERIOD.
WHENEVER A PAYMENT UNDER THIS AGREEMENT SPECIFIES
A PAYMENT PERIOD WITH REFERENCE TO A NUMBER OF DAYS (E.G., "PAYMENT SHALL BE
MADE WITHIN NINETY (90) DAYS FOLLOWING THE DATE OF TERMINATION), THE ACTUAL DATE
OF PAYMENT WITHIN THE SPECIFIED PERIOD SHALL BE WITHIN THE SOLE DISCRETION OF
THE COMPANY.
(C)
REIMBURSEMENT.
WITH REGARD TO ANY PROVISION HEREIN THAT PROVIDES
FOR REIMBURSEMENT OF COSTS AND EXPENSES OR IN-KIND BENEFITS, EXCEPT AS PERMITTED
BY SECTION 409A OF THE CODE, (I) THE RIGHT TO REIMBURSEMENT OR IN-KIND BENEFITS
SHALL NOT BE SUBJECT TO LIQUIDATION OR EXCHANGE FOR ANOTHER BENEFIT, (II) THE
AMOUNT OF EXPENSES ELIGIBLE FOR REIMBURSEMENT, OF IN-KIND BENEFITS, PROVIDED
DURING ANY TAXABLE YEAR SHALL NOT AFFECT THE EXPENSES ELIGIBLE FOR
REIMBURSEMENT, OR IN-KIND BENEFITS TO BE PROVIDED, IN ANY OTHER TAXABLE YEAR,
PROVIDED THAT THE FOREGOING CLAUSE (II) SHALL NOT BE VIOLATED WITHOUT REGARD TO
EXPENSES REIMBURSED UNDER ANY ARRANGEMENT COVERED BY SECTION 105(B) OF THE CODE
SOLELY BECAUSE SUCH EXPENSES ARE SUBJECT TO A LIMIT RELATED TO THE PERIOD THE
ARRANGEMENT IS IN EFFECT AND (III) SUCH PAYMENTS SHALL BE MADE ON
10
OR BEFORE THE LAST DAY OF THE EXECUTIVE'S TAXABLE YEAR FOLLOWING THE TAXABLE
YEAR IN WHICH THE EXPENSE OCCURRED.
(D)
INSTALLMENTS.
IF UNDER THIS AGREEMENT, AN AMOUNT IS TO BE PAID IN
TWO OR MORE INSTALLMENTS, FOR PURPOSES OF SECTION 409A OF THE CODE, EACH
INSTALLMENT SHALL BE TREATED AS A SEPARATE PAYMENT.
17.
ATTORNEY FEES.
THE COMPANY SHALL PAY THE EXECUTIVE'S REASONABLE
LEGAL FEES AND OUT-OF-POCKET EXPENSES OF ONE COUNSEL INCURRED IN CONNECTION WITH
THE NEGOTIATION AND DRAFTING OF THIS EMPLOYMENT AGREEMENT AND ANY EQUITY AWARD
AGREEMENTS, AND OTHER REASONABLE LEGAL FEES AND OUT-OF-POCKET EXPENSES OF ONE
COUNSEL RELATED TO THE SALE OF THE COMPANY CONSUMMATED ON OR ABOUT MAY 31, 2007,
SUBJECT, IN EACH CASE, TO AND WITHIN TEN (10) DAYS AFTER HIS WRITTEN REQUEST FOR
SUCH PAYMENT ACCOMPANIED BY REASONABLY SATISFACTORY EVIDENCE THAT SUCH FEES AND
EXPENSES WERE ACTUALLY INCURRED IN CONNECTION THEREWITH.
IF A COURT OF
COMPETENT JURISDICTION DETERMINES THAT THIS EMPLOYMENT AGREEMENT WAS BREACHED BY
THE COMPANY, THE EXECUTIVE SHALL BE ENTITLED TO RECOVER ANY AND ALL
OUT-OF-POCKET COSTS AND EXPENSES, INCLUDING REASONABLE LEGAL FEES, INCURRED IN
ENFORCING THIS EMPLOYMENT AGREEMENT AGAINST THE COMPANY, SUBJECT TO AND WITHIN
TEN (10) DAYS AFTER HIS REQUEST FOR REIMBURSEMENT ACCOMPANIED BY REASONABLY
SATISFACTORY EVIDENCE THAT THE COSTS AND EXPENSES WERE INCURRED IN CONNECTION
THEREWITH.
THE EXECUTIVE SHALL SUBMIT A WRITTEN REQUEST FOR PAYMENT OR
REIMBURSEMENT WITHIN SIXTY (60) DAYS OF INCURRING THE EXPENSE.
18.
INDEMNIFICATION.
THE COMPANY SHALL INDEMNIFY THE EXECUTIVE
(INCLUDING, FOR THE AVOIDANCE OF DOUBT, ADVANCEMENT OF LEGAL EXPENSES) TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW IN THE EVENT HE WAS OR IS A PARTY OR
IS THREATENED TO BE MADE A PARTY TO ANY THREATENED, PENDING OR COMPLETED ACTION,
SUIT OR PROCEEDING, OR IN THE EVENT A CLAIM OR DEMAND FOR INFORMATION IS MADE OR
THREATENED TO BE MADE AGAINST HIM, IN EACH CASE