with respect to such advance;
and provided further that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest will be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive will be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(E)
IF, AFTER THE RECEIPT BY THE EXECUTIVE OF
AN AMOUNT ADVANCED BY THE COMPANY PURSUANT TO SECTION 3(D), THE EXECUTIVE
BECOMES ENTITLED TO RECEIVE ANY REFUND WITH RESPECT TO SUCH CLAIM, THE EXECUTIVE
MUST (SUBJECT TO THE COMPANY'S COMPLYING WITH THE REQUIREMENTS OF SECTION 3(D))
PROMPTLY PAY TO THE COMPANY THE AMOUNT OF SUCH REFUND (TOGETHER WITH ANY
INTEREST PAID OR CREDITED THEREON AFTER TAXES APPLICABLE THERETO). IF, AFTER THE
RECEIPT BY THE EXECUTIVE OF AN AMOUNT ADVANCED BY THE COMPANY PURSUANT TO
SECTION 3(D), A DETERMINATION IS MADE THAT THE EXECUTIVE WILL NOT BE ENTITLED TO
ANY REFUND WITH RESPECT TO SUCH CLAIM AND THE COMPANY DOES NOT NOTIFY THE
EXECUTIVE IN WRITING OF ITS INTENT TO CONTEST SUCH DENIAL OF REFUND PRIOR TO THE
EXPIRATION OF THIRTY DAYS AFTER SUCH DETERMINATION, THEN SUCH ADVANCE WILL BE
FORGIVEN AND WILL NOT BE REQUIRED TO BE REPAID
5
AND THE AMOUNT OF SUCH ADVANCE WILL OFFSET, TO THE EXTENT THEREOF, THE AMOUNT OF
GROSS-UP PAYMENT REQUIRED TO BE PAID.
4.
INDEMNIFICATION. FOLLOWING A CHANGE IN
CONTROL, THE COMPANY WILL INDEMNIFY AND ADVANCE EXPENSES TO THE EXECUTIVE FOR
DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, JUDGMENTS, FINES,
PENALTIES, SETTLEMENTS AND REASONABLE FEES AND EXPENSES OF THE EXECUTIVE'S
COUNSEL) INCURRED IN CONNECTION WITH ALL MATTERS, EVENTS AND TRANSACTIONS
RELATING TO THE EXECUTIVE'S SERVICE TO OR STATUS WITH THE COMPANY OR ANY OTHER
CORPORATION, EMPLOYEE BENEFIT PLAN OR OTHER PERSON FOR WHICH THE EXECUTIVE
SERVED AT THE REQUEST OF THE COMPANY TO THE EXTENT THAT THE COMPANY WOULD HAVE
BEEN REQUIRED TO DO SO UNDER APPLICABLE LAW, CORPORATE ARTICLES, BYLAWS OR
AGREEMENTS OR INSTRUMENTS OF ANY NATURE WITH OR COVERING THE EXECUTIVE, AS IN
EFFECT IMMEDIATELY PRIOR TO THE CHANGE IN CONTROL AND TO ANY FURTHER EXTENT AS
MAY BE DETERMINED OR AGREED UPON FOLLOWING THE CHANGE IN CONTROL.
5.
MISCELLANEOUS.
(A)
SUCCESSORS. THE PARENT CORPORATION MUST
SEEK TO HAVE ANY SUCCESSOR, BY AGREEMENT IN FORM AND SUBSTANCE SATISFACTORY TO
THE EXECUTIVE, ASSENT TO THE FULFILLMENT BY THE COMPANY OF THE COMPANY'S
OBLIGATIONS UNDER THIS AGREEMENT. FAILURE OF THE PARENT CORPORATION TO OBTAIN
SUCH ASSENT AT LEAST THREE BUSINESS DAYS PRIOR TO THE TIME A PERSON BECOMES A
SUCCESSOR (OR WHERE THE PARENT CORPORATION DOES NOT HAVE AT LEAST THREE BUSINESS
DAYS' ADVANCE NOTICE THAT A PERSON MAY BECOME A SUCCESSOR, WITHIN ONE BUSINESS
DAY AFTER HAVING NOTICE THAT SUCH PERSON MAY