SECTION 4999 OF THE CODE, AND ANY INTEREST OR PENALTIES INCURRED BY THE
EXECUTIVE WITH RESPECT TO SUCH EXCISE TAX.
(III)
THE DETERMINATION AS TO WHICH OF THE ALTERNATIVE PROVISIONS OF
SECTION 5(A)(I) SHALL APPLY TO THE EXECUTIVE SHALL BE MADE BY A NATIONALLY
RECOGNIZED ACCOUNTING FIRM SELECTED 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 DATE OF TERMINATION, IF APPLICABLE, OR
AT SUCH EARLIER TIME AS IS REASONABLY REQUESTED BY THE COMPANY OR THE
EXECUTIVE.
FOR PURPOSES OF DETERMINING WHICH OF THE ALTERNATIVE PROVISIONS OF
SECTION 5(A)(I) SHALL APPLY, THE EXECUTIVE SHALL BE DEEMED TO PAY FEDERAL INCOME
TAXES AT THE HIGHEST MARGINAL RATE OF FEDERAL INCOME TAXATION APPLICABLE TO
INDIVIDUALS FOR THE CALENDAR YEAR IN WHICH THE DETERMINATION IS TO BE MADE, AND
STATE AND LOCAL INCOME TAXES AT THE HIGHEST MARGINAL RATES OF INDIVIDUAL
TAXATION IN THE STATE AND LOCALITY OF THE EXECUTIVE'S RESIDENCE ON THE DATE OF
TERMINATION, NET OF THE MAXIMUM REDUCTION IN FEDERAL INCOME TAXES WHICH COULD BE
OBTAINED FROM DEDUCTION OF SUCH STATE AND LOCAL TAXES.
ANY DETERMINATION BY THE
ACCOUNTING FIRM SHALL BE BINDING UPON THE COMPANY AND THE EXECUTIVE.
6.
TERM.
THIS AGREEMENT SHALL TAKE EFFECT
ON THE DATE FIRST SET FORTH ABOVE AND SHALL TERMINATE UPON THE EARLIER OF
(A) THE TERMINATION BY THE COMPANY OF THE EMPLOYMENT OF THE EXECUTIVE FOR CAUSE
OR THE FAILURE BY THE EXECUTIVE TO PERFORM HIS DUTIES WITH THE COMPANY BY REASON
OF HIS DEATH OR DISABILITY, (B) THE RESIGNATION OR TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT FOR ANY REASON PRIOR TO A CHANGE IN CONTROL, OR (C) THE
DATE WHICH IS 12 MONTHS AFTER A CHANGE IN CONTROL IF THE EXECUTIVE IS STILL
EMPLOYED BY THE COMPANY, PROVIDED THAT THE PROVISIONS OF SECTION 10 SHALL
SURVIVE TERMINATION OF THIS AGREEMENT FOR A PERIOD OF THREE YEARS.
7.
WITHHOLDING.
ALL PAYMENTS MADE BY THE
COMPANY UNDER THIS AGREEMENT SHALL BE NET OF ANY TAX OR OTHER AMOUNTS REQUIRED
TO BE WITHHELD BY THE COMPANY UNDER APPLICABLE LAW.
8.
NOTICE AND DATE OF TERMINATION.
(A)
NOTICE OF TERMINATION.
AFTER A CHANGE IN CONTROL AND DURING THE
TERM OF THIS AGREEMENT, ANY PURPORTED TERMINATION OF THE EXECUTIVE'S EMPLOYMENT
(OTHER THAN BY REASON OF DEATH) SHALL BE COMMUNICATED BY WRITTEN NOTICE OF
TERMINATION FROM ONE PARTY HERETO TO THE OTHER PARTY HERETO IN ACCORDANCE WITH
THIS SECTION 8.
FOR PURPOSES OF THIS AGREEMENT, A "NOTICE OF TERMINATION" SHALL
MEAN A NOTICE WHICH SHALL INDICATE THE SPECIFIC TERMINATION PROVISION IN THIS
AGREEMENT RELIED UPON AND THE DATE OF TERMINATION.
(B)
DATE OF TERMINATION.
"DATE OF TERMINATION," WITH RESPECT TO ANY
PURPORTED TERMINATION OF THE EXECUTIVE'S EMPLOYMENT AFTER A CHANGE IN CONTROL
AND DURING THE
5
TERM OF THIS AGREEMENT, SHALL MEAN THE DATE SPECIFIED IN THE NOTICE OF
TERMINATION.
IN THE CASE OF A TERMINATION BY THE COMPANY OTHER THAN A
TERMINATION FOR CAUSE (WHICH MAY BE EFFECTIVE IMMEDIATELY), THE DATE