PERFORMANCE THEREOF
(INCLUDING AS A RESULT OF ANY CONTEST BY THE EXECUTIVE REGARDING THE AMOUNT OF
ANY PAYMENT OR BENEFITS PURSUANT TO THIS AGREEMENT), PLUS IN EACH CASE INTEREST
ON ANY DELAYED PAYMENT AT THE APPLICABLE FEDERAL RATE PROVIDED FOR IN SECTION
7872(F)(2)(A) OF THE CODE, PROVIDED THAT THE EXECUTIVE SHALL REIMBURSE ANY FEES
AND EXPENSES TO THE EXTENT ANY SUCH CLAIM OR CONTEST IS NOT RESOLVED IN FAVOR OF
THE EXECUTIVE, PROVIDED FURTHER THAT NOTWITHSTANDING THE FORGOING, THE EXECUTIVE
SHALL NOT BE REQUIRED TO REIMBURSE ANY FEES AND EXPENSES IF SUCH CLAIM OR
CONTEST RELATES TO TERMINATION BY THE EXECUTIVE FOR GOOD REASON
5.3
COMPENSATION DURING A DISPUTE.
IF THE
CHANGE IN CONTROL DATE OCCURS DURING THE TERM AND THE EXECUTIVE'S EMPLOYMENT
WITH THE COMPANY TERMINATES WITHIN 24 MONTHS FOLLOWING THE CHANGE IN CONTROL
DATE, AND THE RIGHT OF THE EXECUTIVE TO RECEIVE BENEFITS UNDER SECTION 4 (OR THE
AMOUNT OR NATURE OF THE BENEFITS TO WHICH HE IS ENTITLED TO RECEIVE) ARE THE
SUBJECT OF A DISPUTE BETWEEN THE COMPANY AND THE EXECUTIVE, THE COMPANY SHALL
CONTINUE (A) TO PAY TO THE EXECUTIVE HIS BASE SALARY IN EFFECT AS OF THE
MEASUREMENT DATE AND (B) TO PROVIDE BENEFITS TO THE EXECUTIVE AND THE
EXECUTIVE'S FAMILY AT LEAST EQUAL TO THOSE WHICH WOULD HAVE BEEN PROVIDED TO
THEM, IF THE EXECUTIVE'S EMPLOYMENT HAD NOT BEEN TERMINATED, IN ACCORDANCE WITH
THE APPLICABLE BENEFIT PLANS IN EFFECT ON THE MEASUREMENT DATE, UNTIL SUCH
DISPUTE IS RESOLVED EITHER BY MUTUAL WRITTEN AGREEMENT OF THE PARTIES OR BY AN
ARBITRATOR'S AWARD PURSUANT TO SECTION 5.1.
FOLLOWING THE RESOLUTION OF SUCH
DISPUTE, THE SUM OF THE PAYMENTS MADE TO THE EXECUTIVE UNDER CLAUSE (A) OF THIS
SECTION 5.3 SHALL BE DEDUCTED FROM ANY CASH PAYMENT WHICH THE EXECUTIVE IS
ENTITLED TO RECEIVE PURSUANT TO SECTION 4; AND IF SUCH SUM EXCEEDS THE AMOUNT OF
THE CASH PAYMENT WHICH THE EXECUTIVE IS ENTITLED TO RECEIVE PURSUANT TO
SECTION 4, THE EXCESS OF SUCH SUM OVER THE AMOUNT OF SUCH PAYMENT SHALL BE
REPAID (WITH INTEREST AT THE APPLICABLE FEDERAL RATE PROVIDED FOR IN SECTION
7872(F)(2)(A) OF THE CODE) BY THE EXECUTIVE TO THE COMPANY WITHIN 60 DAYS OF THE
RESOLUTION OF SUCH DISPUTE.
6.
SUCCESSORS.
6.1
SUCCESSOR TO COMPANY.
THE COMPANY SHALL
REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER,
CONSOLIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR
ASSETS OF THE COMPANY EXPRESSLY TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT TO
THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT IF NO SUCH
SUCCESSION HAD TAKEN PLACE.
FAILURE OF THE COMPANY TO OBTAIN AN ASSUMPTION OF
THIS AGREEMENT AT OR PRIOR TO THE EFFECTIVENESS OF ANY SUCCESSION SHALL BE A
BREACH OF THIS AGREEMENT AND SHALL CONSTITUTE GOOD REASON IF THE EXECUTIVE
ELECTS TO TERMINATE EMPLOYMENT, EXCEPT THAT FOR PURPOSES OF IMPLEMENTING THE
FOREGOING, THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES EFFECTIVE SHALL BE
DEEMED THE DATE OF TERMINATION.
AS USED IN THIS AGREEMENT,