PAYMENTS UNDER THE AUTOMOBILE LEASE IN EFFECT FOR THE BENEFIT OF
ASSOCIATE IMMEDIATELY PRIOR TO SUCH TERMINATION, PROVIDED THAT IF ANY PAYMENT
(OR PORTION THEREOF) OTHERWISE DUE UNDER THIS CLAUSE (Z) DURING THE FIRST SIX
(6) MONTHS FOLLOWING THE ASSOCIATE'S TERMINATION OF EMPLOYMENT IS NOT EXEMPT
FROM THE APPLICATION OF SECTION 409A OF THE CODE UNDER APPLICABLE TREASURY
REGULATIONS, THE AMOUNT SUBJECT TO SECTION 409A THAT WOULD OTHERWISE BE PAID
DURING SUCH FIRST SIX MONTHS SHALL BE HELD (WITHOUT ADJUSTMENT FOR EARNINGS AND
LOSSES) AND PAID ON THE FIFTH (5TH) BUSINESS DAY FOLLOWING THE SIX-MONTH
ANNIVERSARY OF SUCH TERMINATION DATE.
F.
AS A CONDITION TO RECEIVING THE SPECIAL SEVERANCE PAYMENT,
ASSOCIATE SHALL EXECUTE THE GENERAL RELEASE IN THE FORM ATTACHED AS EXHIBIT A
HERETO AND THE ASSOCIATE CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETITION
AGREEMENT REFERRED TO IN ARTICLE THIRD HEREOF AND ATTACHED AS EXHIBIT B HERETO
AND SHALL RETURN SUCH EXECUTED GENERAL RELEASE AND AGREEMENT NO LATER THAN 60
DAYS FOLLOWING THE ASSOCIATE'S TERMINATION OF EMPLOYMENT, AND SHALL AT ALL TIMES
BE IN COMPLIANCE THEREWITH.
G.
FOR PURPOSES OF THIS AGREEMENT, "AFFILIATE" SHALL HAVE THE MEANING
ASCRIBED THERETO UNDER THE SECURITIES ACT OF 1933.
H.
FOR PURPOSES OF THIS AGREEMENT, "TERMINATION OF EMPLOYMENT" MEANS
CESSATION OF FULL OR PART TIME EMPLOYMENT WITH THE COMPANY AND ANY OF ITS
SUBSIDIARIES.
SECOND:
TAX INDEMNIFICATION.
A.
IN THE EVENT THAT, AS A RESULT OF ANY OF THE PAYMENTS OR OTHER
CONSIDERATION PROVIDED FOR OR CONTEMPLATED BY ARTICLE FIRST OF THIS AGREEMENT OR
OTHERWISE, A TAX (AN "EXCISE TAX") SHALL BE IMPOSED UPON THE ASSOCIATE OR
THREATENED TO BE IMPOSED UPON THE ASSOCIATE BY
6
VIRTUE OF THE APPLICATION OF SECTION 4999(A) OF THE CODE, AS NOW IN EFFECT OR AS
THE SAME MAY AT ANY TIME OR FROM TIME TO TIME BE AMENDED, OR THE APPLICATION OF
ANY SIMILAR PROVISIONS OF STATE OR LOCAL TAX LAW, THE CORPORATION SHALL
INDEMNIFY AND HOLD THE ASSOCIATE HARMLESS FROM AND AGAINST ALL SUCH TAXES
(INCLUDING ADDITIONS TO TAX, PENALTIES AND INTEREST AND ADDITIONAL EXCISE TAXES,
WHETHER APPLICABLE TO PAYMENTS PURSUANT TO THE PROVISIONS OF THIS AGREEMENT OR
OTHERWISE) INCURRED BY, OR IMPOSED UPON, THE ASSOCIATE AND ALL EXPENSES ARISING
THEREFROM.
B.
EACH INDEMNITY PAYMENT TO BE MADE BY THE CORPORATION PURSUANT TO
PART A OF THIS ARTICLE SECOND SHALL BE INCREASED BY THE AMOUNT OF ALL FEDERAL,
STATE AND LOCAL TAX LIABILITIES (INCLUDING ADDITIONS TO TAX, PAYROLL TAXES,
PENALTIES AND INTEREST AND EXCISE TAX) INCURRED BY, OR IMPOSED UPON, THE
ASSOCIATE SO THAT THE EFFECT OF RECEIVING ALL SUCH INDEMNITY PAYMENTS WILL BE
THAT THE ASSOCIATE SHALL BE HELD HARMLESS ON AN AFTER-TAX BASIS FROM THE AMOUNT
OF ALL EXCISE TAXES IMPOSED UPON PAYMENTS MADE TO THE ASSOCIATE BY THE
CORPORATION PURSUANT TO THIS AGREEMENT, IT BEING THE INTENT OF THE PARTIES THAT
THE ASSOCIATE SHALL NOT INCUR ANY OUT-OF-POCKET COSTS OR EXPENSES OF ANY KIND OR
NATURE ON ACCOUNT OF THE EXCISE TAX AND THE RECEIPT OF THE INDEMNITY PAYMENTS TO
BE MADE BY THE CORPORATION