THAT ARE VESTED AS OF THE DATE OF TERMINATION PURSUANT TO
THIS SECTION 4.3 (OR ISSUED PURSUANT TO THE EXERCISE OF OPTIONS FOLLOWING SUCH
DATE OF TERMINATION PURSUANT TO SECTION 4.3(C)(V) HEREOF), FOR THE ONE HUNDRED
EIGHTY (180)-DAY PERIOD FOLLOWING SUCH DATE OF TERMINATION, THE COMPANY (OR ITS
DESIGNEE) SHALL HAVE THE RIGHT TO PURCHASE FROM THE EXECUTIVE, AND THE EXECUTIVE
HEREBY AGREES TO SELL ANY OR ALL SUCH SHARES TO THE COMPANY (OR THE COMPANY'S
6
DESIGNEE), FOR AN AMOUNT EQUAL TO THE PRODUCT OF (A) THE PER SHARE CURRENT FAIR
MARKET VALUE OF A SHARE OF COMMON STOCK (AS DETERMINED BY THE BOARD IN GOOD
FAITH) AND (B) THE NUMBER OF SHARES SO PURCHASED.
(D)
AS A CONDITION PRECEDENT TO THE EXECUTIVE'S
RIGHT TO RECEIVE THE BENEFITS SET FORTH IN SECTION 4.3(C) HEREOF, THE EXECUTIVE
AGREES TO EXECUTE A RELEASE OF THE COMPANY AND ITS RESPECTIVE AFFILIATES,
OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, INSURERS, REPRESENTATIVES
AND SUCCESSORS FROM AND AGAINST ANY AND ALL CLAIMS THAT THE EXECUTIVE MAY HAVE
AGAINST ANY SUCH PERSON (AS DEFINED IN SECTION 5.4(F) HEREOF) RELATING TO THE
EXECUTIVE'S EMPLOYMENT BY THE COMPANY AND THE TERMINATION THEREOF, SUCH RELEASE
TO BE IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY.
(E)
ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, IF IT SHALL BE DETERMINED THAT ANY PAYMENT, VESTING,
DISTRIBUTION OR TRANSFER BY THE COMPANY OR ANY SUCCESSOR, OR ANY AFFILIATE OF
THE FOREGOING OR BY ANY OTHER PERSON OR THAT ANY OTHER EVENT OCCURRING WITH
RESPECT TO THE EXECUTIVE AND THE COMPANY FOR THE EXECUTIVE'S BENEFIT, WHETHER
PAID OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE UNDER THE TERMS OF THIS
AGREEMENT OR OTHERWISE (INCLUDING UNDER ANY EMPLOYEE BENEFIT PLAN) (A "PAYMENT")
WOULD BE SUBJECT TO OR RESULT IN THE IMPOSITION OF THE EXCISE TAX IMPOSED BY
SECTION 4999 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (AND
ANY REGULATIONS OR GUIDANCE PROMULGATED OR ISSUED THEREUNDER, ANY SUCCESSOR
PROVISION, AND ANY SIMILAR PROVISION OF STATE OR LOCAL INCOME TAX LAW)
(COLLECTIVELY, THE "EXCISE TAX"), THEN THE AMOUNT OF THE PAYMENT SHALL BE
REDUCED TO THE HIGHEST AMOUNT THAT MAY BE PAID BY THE COMPANY OR OTHER ENTITY
WITHOUT SUBJECTING ANY SUCH PAYMENT TO THE EXCISE TAX (THE "PAYMENT
REDUCTION").
THE EXECUTIVE SHALL HAVE THE RIGHT TO DESIGNATE THOSE PAYMENTS OR
BENEFITS THAT SHALL BE REDUCED OR ELIMINATED UNDER THE PAYMENT REDUCTION TO
AVOID THE IMPOSITION OF THE EXCISE TAX, SUBJECT TO THE CONFIRMATION OF THE
ACCOUNTING FIRM (AS DEFINED HEREIN) WITH RESPECT TO THE INTENDED EFFECT THEREOF.
(I)
SUBJECT TO THE PROVISIONS OF
SECTION 4.3(E)(II), ALL DETERMINATIONS REQUIRED TO BE MADE UNDER THIS
SECTION 4.3(E), INCLUDING WHETHER AND WHEN A PAYMENT IS SUBJECT TO SECTION 4999
AND THE ASSUMPTIONS TO BE UTILIZED IN ARRIVING AT SUCH DETERMINATION AND IN
DETERMINING AN APPROPRIATE PAYMENT REDUCTION, SHALL BE MADE BY KPMG LLP, OR ANY
OTHER NATIONALLY RECOGNIZED ACCOUNTING FIRM THAT SHALL BE THE COMPANY'S OUTSIDE
AUDITORS AT THE TIME OF SUCH DETERMINATION (THE "ACCOUNTING FIRM"),