9(B).
EXECUTIVE AGREES
AND ACKNOWLEDGES THAT UPON ANY BREACH BY EXECUTIVE OF EITHER SECTION 9(A) OR
(B), THE COMPANY WILL HAVE THE RIGHT (I) TO TERMINATE ALL SEVERANCE BENEFITS SET
FORTH IN THIS AGREEMENT; (II) TO SEEK REIMBURSEMENT FROM EXECUTIVE FOR ALL
SEVERANCE PAYMENTS PREVIOUSLY MADE TO EXECUTIVE PURSUANT TO THIS AGREEMENT;
(III) TO RECLAIM OWNERSHIP OF ANY SHARES OF COMMON STOCK OWNED BY EXECUTIVE FOR
WHICH VESTING WAS ACCELERATED PURSUANT TO THIS AGREEMENT; AND (IV) TO
IMMEDIATELY CANCEL ALL OUTSTANDING OPTIONS HELD BY EXECUTIVE.
(D)
UNDERSTANDING OF COVENANTS.
EXECUTIVE REPRESENTS THAT HE (I) IS
FAMILIAR WITH THE FOREGOING COVENANTS NOT TO COMPETE AND NOT TO SOLICIT, AND
(II) IS FULLY AWARE OF HIS OBLIGATIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION,
THE REASONABLENESS OF THE LENGTH OF TIME, SCOPE AND GEOGRAPHIC COVERAGE OF THESE
COVENANTS.
10.
EXCISE TAX.
IN THE EVENT THAT THE BENEFITS PROVIDED FOR IN THIS
AGREEMENT CONSTITUTE "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
EXECUTIVE'S SEVERANCE BENEFITS PAYABLE UNDER THE TERMS OF THIS AGREEMENT WILL BE
EITHER (A) DELIVERED IN FULL, OR (B) DELIVERED AS TO SUCH LESSER EXTENT WHICH
WOULD RESULT IN NO PORTION OF SUCH SEVERANCE BENEFITS BEING SUBJECT TO THE
EXCISE TAX, WHICHEVER OF THE FOREGOING AMOUNTS, TAKING INTO ACCOUNT THE
APPLICABLE FEDERAL, STATE AND LOCAL INCOME TAXES AND THE EXCISE TAX, RESULTS IN
THE RECEIPT BY EXECUTIVE ON AN AFTER-TAX BASIS, OF THE GREATEST AMOUNT OF
SEVERANCE BENEFITS,
7
NOTWITHSTANDING THAT ALL OR SOME PORTION OF SUCH SEVERANCE BENEFITS MAY BE
TAXABLE UNDER SECTION 4999 OF THE CODE.
UNLESS EXECUTIVE AND THE COMPANY AGREE
OTHERWISE IN WRITING, THE DETERMINATION OF EXECUTIVE'S EXCISE TAX LIABILITY, IF
ANY, AND THE AMOUNT, IF ANY, REQUIRED TO BE PAID UNDER THIS SECTION 10 WILL BE
MADE IN WRITING BY THE INDEPENDENT AUDITORS WHO ARE PRIMARILY USED BY THE
COMPANY IMMEDIATELY PRIOR TO THE CHANGE OF CONTROL (THE "ACCOUNTANTS").
FOR
PURPOSES OF MAKING THE CALCULATIONS REQUIRED BY THIS SECTION 10, THE ACCOUNTANTS
MAY MAKE REASONABLE ASSUMPTIONS AND APPROXIMATIONS CONCERNING APPLICABLE TAXES
AND MAY RELY ON REASONABLE, GOOD FAITH INTERPRETATIONS CONCERNING THE
APPLICATION OF SECTIONS 280G AND 4999 OF THE CODE.
EXECUTIVE AND THE COMPANY
AGREE TO FURNISH SUCH INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY
REASONABLY REQUEST IN ORDER TO MAKE A DETERMINATION UNDER THIS SECTION 10.
THE
COMPANY WILL BEAR ALL COSTS THE ACCOUNTANTS MAY INCUR IN CONNECTION WITH ANY
CALCULATIONS CONTEMPLATED BY THIS SECTION 10.
11.
ASSIGNMENT.
THIS AGREEMENT WILL BE BINDING UPON AND INURE TO THE
BENEFIT OF (A) THE HEIRS, EXECUTORS AND LEGAL REPRESENTATIVES OF EXECUTIVE UPON
EXECUTIVE'S DEATH AND (B) ANY SUCCESSOR OF THE COMPANY.
ANY SUCCESSOR OF THE
COMPANY WILL BE DEEMED SUBSTITUTED FOR THE COMPANY UNDER THE TERMS OF THIS
AGREEMENT FOR ALL PURPOSES.
NONE OF THE RIGHTS OF EXECUTIVE TO RECEIVE ANY FORM
OF COMPENSATION PAYABLE PURSUANT TO THIS AGREEMENT