PARACHUTE PAYMENT.
IN THE EVENT THAT ANY ACCELERATION OF
VESTING PURSUANT TO THIS AGREEMENT AND ANY OTHER PAYMENT OR BENEFIT RECEIVED OR
TO BE RECEIVED BY THE PARTICIPANT WOULD SUBJECT THE PARTICIPANT TO ANY EXCISE
TAX PURSUANT TO SECTION 4999 OF THE CODE DUE TO THE CHARACTERIZATION OF SUCH
ACCELERATION OF VESTING, PAYMENT OR BENEFIT AS AN EXCESS PARACHUTE PAYMENT UNDER
SECTION 280G OF THE CODE, THE PARTICIPANT MAY ELECT, IN HIS OR HER SOLE
DISCRETION, TO REDUCE THE AMOUNT OF ANY ACCELERATION OF VESTING CALLED FOR UNDER
THIS AGREEMENT IN ORDER TO AVOID SUCH CHARACTERIZATION.
(B)
DETERMINATION BY INDEPENDENT ACCOUNTANTS.
TO AID THE PARTICIPANT
IN MAKING ANY ELECTION CALLED FOR UNDER SECTION 4.3(A), UPON THE OCCURRENCE OF
ANY EVENT THAT MIGHT REASONABLY BE ANTICIPATED TO GIVE RISE TO THE ACCELERATION
OF VESTING UNDER SECTION 4.2 (AN "EVENT"), THE COMPANY SHALL PROMPTLY REQUEST A
DETERMINATION IN WRITING BY INDEPENDENT PUBLIC ACCOUNTANTS SELECTED BY THE
COMPANY (THE "ACCOUNTANTS").
UNLESS THE COMPANY AND THE PARTICIPANT OTHERWISE
AGREE IN WRITING, THE ACCOUNTANTS SHALL DETERMINE AND REPORT TO THE COMPANY AND
THE PARTICIPANT WITHIN TWENTY (20) DAYS OF THE DATE OF THE EVENT THE AMOUNT OF
SUCH ACCELERATION OF VESTING, PAYMENTS AND BENEFITS WHICH WOULD PRODUCE THE
GREATEST AFTER-TAX BENEFIT TO THE PARTICIPANT.
FOR THE PURPOSES OF SUCH
DETERMINATION, THE ACCOUNTANTS MAY RELY ON REASONABLE, GOOD FAITH
INTERPRETATIONS CONCERNING THE APPLICATION OF SECTIONS 280G AND 4999 OF THE
CODE.
THE COMPANY AND THE PARTICIPANT SHALL FURNISH TO THE ACCOUNTANTS SUCH
INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY REASONABLY REQUEST IN ORDER TO
MAKE THEIR REQUIRED DETERMINATION.
THE COMPANY SHALL BEAR ALL FEES AND EXPENSES
THE ACCOUNTANTS MAY REASONABLY CHARGE IN CONNECTION WITH THEIR SERVICES
CONTEMPLATED BY THIS SECTION.
5.
COMPANY REACQUISITION RIGHT.
5.1
GRANT OF COMPANY REACQUISITION RIGHT.
EXCEPT TO THE EXTENT
OTHERWISE PROVIDED IN AN EMPLOYMENT AGREEMENT BETWEEN A PARTICIPATING COMPANY
AND THE PARTICIPANT, IN THE EVENT THAT (A) THE PARTICIPANT'S SERVICE TERMINATES
FOR ANY REASON OR NO REASON, WITH OR WITHOUT CAUSE, OR (B) THE PARTICIPANT, THE
PARTICIPANT'S LEGAL REPRESENTATIVE, OR OTHER HOLDER OF THE SHARES, ATTEMPTS TO
SELL, EXCHANGE, TRANSFER, PLEDGE, OR OTHERWISE DISPOSE OF (OTHER THAN PURSUANT
TO AN OWNERSHIP CHANGE EVENT), INCLUDING, WITHOUT LIMITATION, ANY TRANSFER TO A
NOMINEE OR AGENT OF THE PARTICIPANT, ANY SHARES WHICH ARE NOT VESTED SHARES
("UNVESTED SHARES"), THE COMPANY SHALL AUTOMATICALLY REACQUIRE THE UNVESTED
SHARES, AND THE PARTICIPANT SHALL NOT BE ENTITLED TO ANY PAYMENT THEREFOR (THE
"COMPANY REACQUISITION RIGHT").
5.2
OWNERSHIP CHANGE EVENT.
UPON THE OCCURRENCE OF AN OWNERSHIP
CHANGE EVENT, ANY AND ALL NEW, SUBSTITUTED OR ADDITIONAL SECURITIES OR OTHER
PROPERTY TO WHICH THE PARTICIPANT IS ENTITLED BY REASON OF THE PARTICIPANT'S
OWNERSHIP OF UNVESTED SHARES SHALL BE IMMEDIATELY SUBJECT TO THE COMPANY
REACQUISITION RIGHT AND INCLUDED IN THE TERMS "SHARES," "STOCK" AND "UNVESTED
SHARES" FOR ALL PURPOSES OF THE COMPANY REACQUISITION RIGHT WITH THE
3
SAME FORCE AND EFFECT AS THE UNVESTED SHARES IMMEDIATELY PRIOR TO THE OWNERSHIP
CHANGE EVENT.
FOR PURPOSES OF DETERMINING THE NUMBER OF VESTED SHARES