AND HE
AGREES THAT THE COMPANY, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO IT FOR
SUCH BREACH OR THREATENED BREACH, SHALL BE ENTITLED TO A PRELIMINARY INJUNCTION,
TEMPORARY RESTRAINING ORDER, OR OTHER EQUIVALENT RELIEF, RESTRAINING THE
EXECUTIVE FROM ANY ACTUAL OR THREATENED BREACH OF ANY OF PARAGRAPHS 6, 7 OR 8.
IF A BOND IS REQUIRED TO BE POSTED IN ORDER FOR THE COMPANY TO SECURE AN
INJUNCTION OR OTHER EQUITABLE REMEDY, THE PARTIES AGREE THAT SAID BOND NEED NOT
BE MORE THAN A NOMINAL SUM.
THE PARTIES HERETO ACKNOWLEDGE THAT THE POTENTIAL
RESTRICTIONS ON THE EXECUTIVE'S FUTURE EMPLOYMENT IMPOSED BY PARAGRAPHS 6, 7 AND
8 ARE REASONABLE IN DURATION AND ALL OTHER RESPECTS.
IF FOR ANY REASON ANY
COURT OF COMPETENT JURISDICTION SHALL FIND PARAGRAPHS 6, 7, OR 8 UNREASONABLE IN
DURATION OR OTHERWISE, THE EXECUTIVE AND THE COMPANY AGREE THAT THE RESTRICTIONS
AND PROHIBITIONS CONTAINED HEREIN SHALL BE EFFECTIVE TO THE FULLEST EXTENT
ALLOWED UNDER APPLICABLE LAW IN SUCH JURISDICTION.
10.
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(A)
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING AND
EXCEPT AS SET FORTH BELOW, IN THE EVENT IT SHALL BE DETERMINED THAT ANY PAYMENT,
AWARD, BENEFIT OR DISTRIBUTION (OR ANY ACCELERATION OF ANY PAYMENT, AWARD,
BENEFIT OR DISTRIBUTION) BY THE COMPANY TO OR FOR THE BENEFIT OF THE EXECUTIVE
(WHETHER PAID OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO THE TERMS
OF THIS AGREEMENT OR OTHERWISE, BUT DETERMINED WITHOUT REGARD TO ANY ADDITIONAL
PAYMENTS REQUIRED UNDER THIS PARAGRAPH 10) (A "PAYMENT") WOULD BE SUBJECT TO THE
EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE OR ANY INTEREST OR PENALTIES ARE
INCURRED BY THE EXECUTIVE WITH RESPECT TO SUCH EXCISE TAX (SUCH EXCISE TAX,
TOGETHER WITH ANY SUCH INTEREST AND PENALTIES, ARE HEREINAFTER COLLECTIVELY
REFERRED TO AS THE "EXCISE TAX"), THEN THE EXECUTIVE SHALL BE ENTITLED TO
RECEIVE AN ADDITIONAL PAYMENT (A "GROSS-UP PAYMENT") IN AN AMOUNT SUCH THAT
AFTER PAYMENT BY THE EXECUTIVE OF ALL TAXES (INCLUDING ANY INTEREST OR PENALTIES
IMPOSED WITH RESPECT TO SUCH TAXES), INCLUDING, WITHOUT LIMITATION, ANY INCOME
AND EMPLOYMENT TAXES (AND ANY INTEREST AND PENALTIES IMPOSED WITH RESPECT
THERETO) AND EXCISE TAX IMPOSED UPON THE GROSS-UP PAYMENT, THE EXECUTIVE RETAINS
AN AMOUNT OF THE GROSS-UP PAYMENT EQUAL TO THE EXCISE TAX IMPOSED UPON THE
PAYMENTS.
(B)
SUBJECT TO THE PROVISIONS OF PARAGRAPH 10(A), ALL DETERMINATIONS
REQUIRED TO BE MADE UNDER THIS PARAGRAPH 10, INCLUDING WHETHER AND WHEN A
GROSS-UP PAYMENT IS
13
REQUIRED AND THE AMOUNT OF SUCH GROSS-UP PAYMENT AND THE ASSUMPTIONS TO BE
UTILIZED IN ARRIVING AT SUCH DETERMINATION, SHALL BE MADE BY A CERTIFIED PUBLIC
ACCOUNTING FIRM REASONABLY ACCEPTABLE TO THE EXECUTIVE AS MAY BE DESIGNATED BY
THE COMPANY (THE "ACCOUNTING FIRM") WHICH SHALL PROVIDE DETAILED SUPPORTING
CALCULATIONS BOTH TO THE COMPANY AND THE EXECUTIVE WITHIN 15 BUSINESS DAYS OF
THE RECEIPT OF NOTICE FROM THE EXECUTIVE THAT THERE HAS BEEN A PAYMENT, OR SUCH
EARLIER TIME AS IS REQUESTED BY THE COMPANY.
IF THE ACCOUNTING FIRM DETERMINES
THAT