The Company desires to induce Executive to remain in employment by providing the Executive protection in the event of a termination of the Executives employment in certain circumstances, and Executive desires to continue to be employed by the Company and to accept such protection.
In consideration of the promises and mutual covenants contained herein and for other good and valuable consideration, the parties agree as follows:
1. Term. This Agreement shall be effective for a period commencing on the date of this Agreement and ending on February 1, 2008 (the Term); provided, however, that commencing with February 2, 2008 and on each anniversary thereof (each an Extension Date), the Term shall automatically be extended for an additional twelve (12) month period, unless the Company or Executive provides the other party hereto twelve (12) months prior written notice before the next Extension Date that the Term shall not be so extended.
2. Termination of Employment.
a. By the Company without Cause or by Executive for Good Reason. If, during the Term, Executives employment with the Company and its affiliates is terminated by the Company without Cause or by Executives resignation for Good Reason (as each such term is defined in Section 3 below), subject to the Executives execution of a general waiver and release of claims agreement substantially in the form attached hereto as Exhibit A, and subject to the Executives compliance with the terms of Exhibit B attached hereto, Executive shall be entitled to receive:
(i) a cash severance payment equal to two (2) times the Executives annual rate of base salary, as in effect prior to the date on which such termination occurs (or, if higher, as in effect prior to the occurrence identified in Section 3(c)(ii)), payable in equal installments, in accordance with the normal payroll practices of the Company over the twenty-four (24) month period following the date of termination (the Severance Period); provided, however, that such severance payment shall be in lieu of notice or any other severance benefits to which the Executive might otherwise be entitled; and
(ii) the annual cash bonus that the Executive would have received, if the Executive had remained employed by the Company through the end of the fiscal year of the Company in which such termination occurs (with the determination of the amount, if any, of such bonus based on the Companys performance in relation to the applicable performance targets previously established by the Company for such fiscal year, as determined in good faith by the Compensation Committee of the Board of Supervisory Directors of The Nielsen Company B.V.), multiplied by the Pro-Rate Factor (as defined in Section 3 below) (as applicable to the Executives employment with the Company) and paid at such time as the annual cash bonus would otherwise have been paid to the Executive;
(iii) continuation of the Executives coverage under the Companys health and welfare benefit plans and programs in which the Executive was entitled to participate immediately prior to the date of termination, to the extent permitted under the terms of such plans and programs, until the earlier to occur of (i) the end of the Severance Period and (ii) the date on which the Executive receives comparable health and welfare benefits from any subsequent employer; provided that, to the extent that the Company is unable to continue such benefits because the terms of such plan or program does not so permit, or if such continuation would violate Section 105(h) of the Internal Revenue Code of 1986, as amended (the Code), the Company shall then provide the Executive with an economically equivalent benefit or payment determined on (to the extent health and welfare benefit plans and programs in which the Executive was entitled to participate immediately prior to the date of termination were non-taxable to the Executive) an after-tax basis;
(iv) all earned and unpaid and/or vested, nonforfeitable amounts owing or accrued at the date of Executives termination of employment (include any earned but unpaid base salary) under any compensation and benefit plans, programs, and arrangements of the Company and its affiliates in which Executive theretofore participated, payable in accordance with the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted or accrued; and
(v) reimbursement for any unreimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of termination.
b. By the Company for Cause or by Executive without Good Reason. If, during the Term, Executives employment with the Company and its affiliates is terminated by the Company for Cause or by Executives resignation without Good Reason, Executive shall be entitled to receive only those benefits described in Section 2(a)(iv) and (v) above.
c. Due to Executives Death or Disability. If, during the Term, Executives employment with the Company and its affiliates is terminated by the Company by reason of Executives death or Disability (as defined in Section 3 below), Executive or Executives estate (as the case may be) shall be entitled to receive only those payments and benefits described in Section 2(a)(ii), (iv) and (v) above.
d. Following Executives termination or resignation (as the case may be), except as set forth in this Sections 2 and Sections 4 and 6, below, Executive shall have no further rights to any other compensation or benefits under this Agreement or any other severance plan or arrangement maintained by the Company or any of its affiliates, except as otherwise provided under any stock option or management stockholders agreement entered into by and between Executive and the Company or any of its affiliates.
3. Definitions. For purposes of this Agreement:
a. Cause shall mean
(i) Executives willful misconduct with regard to the Company;
(ii) Executives indictment for, conviction of, or plea of nolo contendere to (under the laws of the United States or any state thereof), a felony, a misdemeanor involving moral turpitude, or an intentional crime involving material dishonesty other than, in any case, vicarious liability;
(iii) Executives conduct involving the use of illegal drugs in the workplace;
(iv) Executives failure to attempt in good faith to follow a lawful directive of his or her supervisor within ten (10) days after written notice of such failure is delivered to Executive by the Company; and/or
(v) Executives material breach of the Executives Management Stockholders Agreement or the Executives other agreements with the Company, which continues beyond ten (10) days after written demand for substantial performance is delivered to the Executive by the Company (to the extent that, in the reasonable judgment of the Companys Supervisory Board, such breach can be cured by the Executive).
b. Disability shall mean the Executives physical or mental inability to perform substantially his or her employment duties for a period of 180 consecutive days as determined by an approved medical doctor. For this purpose, an approved medical doctor shall mean a medical doctor selected by the Company and the Executive. If the Company and the Executive cannot agree on a medical doctor, each party shall select a medical doctor and the two doctors shall select another medical doctor who shall be the sole medical doctor for this purpose.
c. Good Reason shall mean without Executives express written consent, the occurrence of any of the following circumstances:
(i) a material diminution in the nature or scope of Executives responsibilities, duties or authority (other than any such diminution which may occur by reason of the corporate restructuring programs in effect as of the time of the Agreement); or
(ii) a reduction in Executives annual base salary and/or target annual incentive under the Companys Annual Incentive Plan (target AIP) (excluding any reduction in Executives base salary and/or target AIP that is part of a plan to reduce compensation of comparably situated employees of the Company generally; provided that such reduction in Executives base salary and/or target AIP is not greater than ten percent (10%) of such base salary and/or target AIP);
(iii) the relocation by the Company of Executives primary place of employment with the Company to a location more than fifty (50) miles outside of Executives current principal place of employment (which shall not be deemed to occur due to a requirement that Executive travel in connection with the performance of his or her duties);
(iv) the failure by the Company to renew the Term of this Agreement; in any case of the foregoing, that remains uncured after ten (10) business days after Executive has provided the Company written notice that Executive believes in good faith that such event giving rise to such claim of Good Reason has occurred, so long as such notice is provided within ninety (90) days after such event has first occurred.
d. Pro-Rate Factor shall mean a fraction, (i) the numerator of which is equal to the number of days that the Executive is employed by the Company during the calendar year in which the Executives employment terminates, and (ii) the denominator of which is the number of days in such calendar year.
4. Tax Gross-up. During the Term, but only following the occurrence of an initial public offering of the common stock of the Company or any of its affiliates, as applicable, should Executive receive any payments (including pursuant to any stock option or equity award plans) from the Company or its affiliates that are subject to tax under Section 4999 of the Code, the provisions of Exhibit C shall apply to such payments.
5. Notice of Termination. Any purported termination of employment by the Company or by Executive (other than due to Executives death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 8(e) hereof. 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, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated.
6. Section 409A. If any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause the Executive to incur any additional tax or interest under Section 409A of the Code or any regulations or Treasury guidance promulgated thereunder, the Company shall, after consulting with the Executive, reform such provision to comply with Section 409 A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.
7. Restrictive Covenants. As a condition to the payment of Executives severance in accordance with Sections 2(a) and 2(b) of this Agreement, Executive agrees to be bound by the restrictive covenants set forth in Exhibit B attached hereto and incorporated by reference herein.
a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York, without regard to conflicts of laws principles thereof.
b. Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter contained herein, and during the Term supersedes all prior agreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto.
c. No Waiver; Severability. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such partys rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
d. Successor; Binding Agreement. The Company shall assign this Agreement and its obligations hereunder to any successor thereof. This Agreement shall inure to the benefit of and be enforceable by Executive and Executives personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive should die while any amount would still be payable to Executive hereunder had Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to Executives devisee, legatee or other designee or, if there is no such designee, to Executives estate.
e. Notice. For the purpose of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.
If to the Company:
The Nielsen Company B.V.
New York, NY 10003
Attention: Chief Human Resources Officer
If to Executive:
7 chateau Ridge Road
Greenwich, CT 06831
f. Withholding Taxes. The Company may withhold from any amounts payable under this Agreement such Federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.
g. No Mitigation. Executive shall not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Agreement be reduced by an compensation earned by Executive as the result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by Executive to the Company, or otherwise.
h. Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
[Signatures on next page.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
Form of Release
James W. Cuminale (the Executive) agrees for the Executive, the Executives spouse and child or children (if any), the Executives heirs, beneficiaries, devisees, executors, administrators, attorneys, personal representatives, successors and assigns, hereby forever to release, discharge, and covenant not to sue The Nielsen Company B.V., a private company with limited liability incorporated under the laws of the Netherlands (Besloten Vennootschap met Beperkte Aansprakelijkheid) (the Company), the Companys past, present, or future parent, affiliated, related, and/or subsidiary entities, and all of their past and present directors, shareholders, officers, general or limited partners, employees, agents, and attorneys, and agents and representatives of such entities, in such capacities, and employee benefit plans in which the Executive is or has been a participant by virtue of his employment with the Company, and the successors of the Company or any of the foregoing entities, from any and all claims, debts, demands, accounts, judgments, rights, causes of action, equitable relief, damages, costs, charges, complaints, obligations, promises, agreements, controversies, suits, expenses, compensation, responsibility and liability of every kind and character whatsoever (including attorneys fees and costs), whether in law or equity, known or unknown, asserted or unasserted, suspected or unsuspected, which the Executive has or may have had against such entities based on any events or circumstances arising or occurring on or prior to the date of this Release (or, with respect to claims of disparagement, arising or occurring on or prior to the date this Release is executed), arising directly or indirectly out of, relating to, or in any other way involving in any manner whatsoever, (a) the Executives employment with the Company or the termination thereof or (b) the Executives status at any time as a holder of any securities of the Company, and any and all claims arising under the law of the United States, any other country, or any state, or locality relating to employment, or securities, including, without limitation, claims of wrongful discharge, breach of express or implied contract, fraud, misrepresentation, defamation, or liability in tort, claims of any kind that may be brought in any court or administrative agency, any claims arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Employee Retirement Income Security Act, the Family and Medical Leave Act, the Securities Act of 1933, the Securities Exchange Act of 1934, the Sarbanes-Oxley Act, and similar statutes, ordinances, and regulations of the United States, any other country, or any state or locality; provided, however, notwithstanding anything to the contrary set forth herein, that this general release shall not extend to (x) amounts owed to or rights available for the Executive under that certain Severance Agreement dated March , 2007, by and between the Company and the Executive (the Severance Agreement) and (y) benefit claims under employee pension benefit plans in which the Executive is a participant by virtue of his employment with the Company or to benefit claims under employee welfare benefit plans for occurrences (e.g., medical care, death, or onset of disability) arising after the execution of this Release by the Executive.
The Executive understands that this Release includes a release of claims arising under the Age Discrimination in Employment Act (ADEA). The Executive understands and warrants that he has been given a period of 21 days to review and consider this Release. The Executive is hereby advised to consult with an attorney prior to executing the Release. By his signature below, the Executive warrants that he has had the opportunity to do so and to be fully
and fairly advised by that legal counsel as to the terms of this Release. The Executive further warrants that he understands that he may use as much or all of his 21-day period as he wishes before signing, and warrants that he has done so.
The Executive further warrants that he understands that he has seven days after signing this Release to revoke the Release by notice in writing to [ ]. This Release shall be binding, effective, and enforceable upon both parties upon the expiration of this seven-day revocation period without [ ] having received such revocation, but if the Executive revokes the Release during such time, the Executive understands that the Executive will forfeit any rights he may have to any severance payments and benefits otherwise due under Section 2(a) of the Severance Agreement.
Executed this day of , 20
|James W. Cuminale|
(1) Non-Competition; Non-Solicitation; No-Hire
|(a)||The Executive shall not, at any time during the Term or during the two-year period following the date of any termination of the Executives employment (the Restricted Period):|
Directly or indirectly engage in, have any equity interest in, or manage or operate (whether as director, officer, employee, agent, representative, partner, security holder, consultant or otherwise) any of the entities (which term entity shall for purposes of this Exhibit B include any subsidiaries, parent entities or other affiliates thereof (measured on the date of the Executives commencement of activities for such entities), or any successor thereto with regard to all or substantially all of the entitys assets) set forth in a letter to be delivered to the Executive within thirty (30) days of the date hereof (each, a Competitive Entity), which original Competitive Entity must satisfy the fifteen (15) percent threshold described below (but as applied to the Group (as defined below)); provided, however, that the Executive shall be permitted to acquire a passive stock or equity interest in any such entity provided the stock or other equity interest acquired is not more than five (5) percent of the outstanding interest in such entity; provided, further, that, at any time prior to delivery of a Notice of Termination by either party hereto, the Company shall have the discretion, acting reasonably and in good faith, to add additional Competitive Entities up to a total of ten (10), including those previously on the list, or to substitute another entity for any of the Competitive Entities; provided, further, that such addition or substitution is made prior to the giving of a Notice of Termination. Notwithstanding the foregoing, if the Company acquires any business in another business line (each, a New Business), then the Company shall have the discretion, acting reasonably and in good faith, to add up to five (5) competitors of the New Business to the foregoing list of the Competitive Entities, in excess of the applicable numerical limit, so long as each such added competitor derives at least fifteen (15) percent of its consolidated revenues and profits from business units that are competitive with the New Business based on the consolidated revenues and profits in the fiscal year immediately prior to the year such entity is added as a Competitive Entity; provided, further, that (x) at the time of any such acquisition, the Company shall examine the entire list of Competitive Entities and, in good faith, remove any which it reasonably believes should no longer be considered Competitive Entities, (y) the Company shall promptly remove any Competitive Entities in the event of the subsequent sale of the business of the Company with respect to which such Competitive Entity competes and (z) in no event shall the number of Competitive Entities be
|more than seventeen (17). For purposes of this Exhibit B, the term Group shall mean shall mean Valcon Acquisition Holding (Luxembourg) S.a r.l., a private limited company incorporated under the laws of Luxembourg (Lux Holdco) and any of its direct and indirect subsidiaries and affiliates (including, without limitation, the U.S. Entity), together with any successor thereto.|
|(ii)||Directly or indirectly solicit or hire, on his own behalf or on behalf of any other person or entity, the services of any individual who, at the time of the Executives termination of employment hereunder, is (or, at any time during the previous twelve (12) months, was) a management-level employee or executive officer of the Company or, other than in the good faith performance of his duties with the Company, solicit or induce any of the Companys then employees to terminate employment with the Company; provided that the foregoing shall not be violated if an entity with which the Executive is then associated solicits or hires any such prohibited person (other than any such person that is set forth on a list containing no more than fifty (50) individuals, to be provided by the Company to the Executive within thirty (30) days of his termination of employment hereunder), so long as the Executive does not, with knowledge of such persons relationship with the Company, direct or approve and is not otherwise involved in such solicitation or hire of the specific person (as opposed to filling the position). The restrictions in this Section (l)(a)(ii) shall not apply to (A) general solicitations that are not specifically directed to employees of the Company or any affiliate or (B) serving as a reference at the request of an employee. There shall be no violation of this Section (l)(a)(ii) that may serve as a basis for Cause or a forfeiture event, unless there is an actual hire and the failure of such person hired to return to the Companys employ (or other cure, if possible) within ten (10) days of Executives receipt of written notice from the Company; or|
Other than in the good faith performance of his duties with the Company, directly or indirectly, on his own behalf or on behalf of any other person or entity, recruit or otherwise solicit or induce any customer, subscriber or supplier of the Company at the time of the Executives termination of employment hereunder (or, at any time during the previous twelve (12) months) to terminate its arrangements with the Company, otherwise adversely change its relationship with the Company, or establish any relationship with the Executive or any of his affiliates for any business purpose competitive with the business of the Company; provided that the foregoing shall not be violated (A) by actions of the Executive taken on behalf of an entity with which the Executive is then associated and which is a customer, subscriber or supplier of the Company, to the extent that such actions are taken in connection with such customer, subscriber or supplier relationship, and (B) if an entity with which the Executive is then associated solicits or induces any such prohibited person, so long as the
|Executive does not, with knowledge of such persons relationship with the Company, direct or approve and is not otherwise involved in such solicitation or inducement of the specific transaction (as opposed to transactions in general). The restrictions in this Section (l)(a)(iii) shall not apply to general advertisements that are not specifically directed to customers or suppliers of the Company or any affiliate. There shall be no violation of this Section (l)(a)(iii) that may serve as a basis for Cause or a forfeiture event, unless there is an actual termination, or an adverse change in the relationship, by a customer, subscriber or supplier of the Company and a failure by the Executive to cure within ten (10) days of receipt of written notice from the Company.|
|(b)||In the event that the terms of this Section (1) shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.|
|(c)||As used in this Section (1), the term Company shall only include Lux Holdco and its affiliates.|
|(d)||The provisions contained in Section (l)(a) may be altered and/or waived with the prior written consent of the Board of Supervisory Directors of The Nielsen Company B.V., a private company with limited liability incorporated under the laws of the Netherlands (besloten vennootschap met beperkte aansprakelijkheid) (the BV), or the Compensation Committee thereof.|
|(2)||Nondisclosure of Proprietary Information|
Except as deemed desirable by the Executive in the good faith performance of the Executives duties hereunder or pursuant to Section (2)(c), the Executive shall, during the Term and in perpetuity after the Date of Termination, maintain in confidence and shall not directly or indirectly, use, disseminate, disclose or publish, or use for his benefit or the benefit of any person, firm, corporation or other entity any confidential or proprietary information or trade secrets of the Company, including, without limitation, information with respect to the Companys operations, processes, protocols, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, compensation paid to employees or other terms of employment (Proprietary Information), or deliver to any person, firm, corporation or other entity any document, record, notebook, computer program or similar repository of or containing any such Proprietary Information. The Executives obligation to maintain and not use, disseminate, disclose or publish, or use for his benefit or the
|benefit of any person, firm, corporation or other entity any Proprietary Information after the Date of Termination will continue so long as such Proprietary Information is not generally known within the relevant trade or industry or in the public domain (other than by means of the Executives improper direct or indirect disclosure of such Proprietary Information) or is available, or becomes available to the Executive on a non-confidential basis, but only if the Executive has a reasonable good faith belief that such information is public, and such information is continued to be maintained as Proprietary Information by the Company. The parties hereby stipulate and agree that as between them, the Proprietary Information identified herein may be important, material and may affect the successful conduct of the businesses of the Company (and any successor or assignee of the Company).|
|(b)||Upon termination of the Executives employment with the Company for any reason, the Executive will promptly deliver to the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents concerning the Companys customers, business plans, marketing strategies, products or processes. Notwithstanding the foregoing, the Executive may retain documents relating to his personal compensation and entitlements and his personal rolodex.|
|(c)||The Executive may respond to a lawful and valid subpoena or other legal process but shall give the Company the prompt written notice thereof, shall, as much in advance of the return date as reasonably possible, make available to the Company and its counsel the documents and other information sought, and shall reasonably assist, at the Companys expense, such counsel in resisting or otherwise responding to such process.|
|(d)||As used in this Section (2), the term Company shall only include Lux Holdco and its affiliates.|
|(a)||Each of the parties hereto agrees that at no time during the Executives employment by the Company or at any time within two (2) years thereafter shall such party (and, in the case of the Company, its officers and the members of the Executive Board of Directors of the BV, and board of directors of Lux Holdco) make, or cause or assist any other person to make, with intent to damage, any public statement or other public communication which impugns or attacks, or is otherwise critical of, the reputation, business or character of the other party (including, in the case of Lux Holdco, any of its directors or officers).|
|(b)||Notwithstanding the foregoing, nothing in this Section (3) shall prevent the Company, the Executive or any other person from (i) responding to incorrect, disparaging or derogatory public statements to the extent necessary to correct or refute such public statements, or (ii) making any truthful statement (A) to the extent necessary in connection with any litigation, arbitration or mediation|
|involving this Agreement, including, but not limited to, the enforcement of this Agreement, (B) to the extent required by law or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction or authority to order or require such person to disclose or make accessible such information, (C) that is a normal comparative statement in the context of advertising, promotion or solicitation of customers, without reference to the Executives prior relationship with the Company, or (D) as the Executive deems reasonably desirable in the good faith performance of his duties with the Company.|
It is recognized and acknowledged by the Company and the Executive that a breach of the covenants contained in Sections (1), (2) and (3) may cause irreparable damage to the Company and its goodwill and, with respect to Section (3), the Executive, the exact amount of which will be difficult or impossible to ascertain, and that the remedies at law for any such breach will be inadequate. Accordingly, the Company and the Executive agree that in the event of a breach of any of the covenants contained in Sections (1), (2) and (3), in addition to any other remedy which may be available at law or in equity, the Company or the Executive, as applicable, will be entitled to specific performance and injunctive relief.
|(1)||Parachute Payments and Excise Taxes|
|(a)||So long as the Company is described in Section 280G(b)(5)(A)(ii)(I) of the Code, if any payment or benefit (within the meaning of Section 280G(b)(2) of the Code), to the Executive or for the Executives benefit paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Executives employment with the Company or a change in ownership or effective control of the Company or of a substantial portion of its assets (any such payment or benefit, a Parachute Payment), would be subject to the excise tax imposed by Section 4999 of the Code, or if 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 will be entitled to receive additional payments (a Gross-Up Payment) in an amount equal to the Excise Taxes imposed upon the Parachute Payment and the Gross-Up Payment. Except as expressly provided in this Section (l)(a), the Executive shall not be entitled to any additional payments in connection with any Parachute Payments or Gross-Up Payments, including any reimbursement for the income tax thereon.|
|(b)||If the Company is not described in Section 280G(b)(5)(A)(ii)(I) of the Code, and if the Executive shall become entitled to a Parachute Payment, which Parachute Payment will be subject to the Excise Tax, subject to Section (l)(e) below, then the Company shall pay to the Executive at the time specified below (i) a Gross-Up Payment such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute Payment and any U.S. federal, state, and local income or payroll tax upon the Gross-up Payment provided for by this paragraph, but before deduction for any U.S. federal, state, and local income or payroll tax on the Parachute Payment, shall be equal to the Parachute Payment, and (ii) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in the Executives adjusted gross income multiplied by the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made.|
Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that if the Parachute Payment (other than that portion valued under Treasury Regulation Section 1.280G, Q&A 24(c)) (the Cash Payment) is reduced by the amount necessary such that the receipt of the Cash Payment would not give rise to any Excise Tax (the Reduced Payment) and the Reduced Payment would not be less than ninety percent (90%) of the Cash Payment, then no Gross-Up Payment shall be made to the Executive and the Cash Payments, in the aggregate, shall be reduced to the Reduced Payments. If the Reduced Payment is to be effective, payments shall be reduced in the following order (i) any cash severance based on a multiple of Annual Base Salary or Annual Bonus, (ii) any other cash amounts payable to the Executive, (iii) any
|benefits valued as parachute payments, (iv) acceleration of vesting of any stock options for which the exercise price exceeds the then fair market value, and (v) acceleration of vesting of any equity not covered by subsection (iv) above, unless the Executive elects another method of reduction by written notice to the Company prior to the change of ownership or effective control.|
|(d)||In the event that the Internal Revenue Service or court ultimately makes a determination that the excess parachute payments plus the base amount is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Payment, as applicable to reflect the final determination and the resulting impact on whether the preceding Section (1)(c) applies.|
|(e)||For purposes of determining whether any of the Parachute Payments and Gross-Up Payments (collectively the Total Payments) will be subject to the Excise Tax and the amount of such Excise Tax, (i) the Total Payments shall be treated as parachute payments within the meaning of Section 280G(b)(2) of the Code, and all parachute payments in excess of the base amount (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Companys independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants or the Company (the Accountants), there is a reasonable reporting position that such Total Payments (in whole or in part) either do not constitute parachute payments, including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1, Q&A 33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount or are otherwise not subject to the Excise Tax, and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. To the extent permitted under Revenue Procedure 2003-68, the value determination shall be recalculated to the extent it would be beneficial to the Executive. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as they are requested by the Company or the Executive. If the Accountants determine that payments under this Agreement must be reduced pursuant to this paragraph, they shall furnish the Executive with a written opinion to such effect. The determination of the Accountants shall be final and binding upon the Company and the Executive.|
For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executives residence for the calendar year in which the Parachute Payment is to be made, net of the maximum reduction in
|U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executives claim for refund or credit from such tax authority is denied.|
|(g)||In the event that the Excise Tax is later determined by the Accountant or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined.|
The Gross-up Payment or portion thereof provided for above shall be paid not later than the sixtieth (60th) day following a change in ownership or effective control covered by Section 280G(b)(2) of the Code that subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Accountant, of the minimum amount of such payments and shall pay the remainder of such payments, subject to further payments pursuant to Section (l)(d), as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, subject to Section (1)(1), such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).
|(i)||In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), but the Executive shall control any other issues unrelated to the Excise Tax. In the event that the issues are interrelated, the Executive and the Company shall in good faith cooperate. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and his representative shall cooperate with the Company and its representative.|
|(j)||The Company shall be responsible for all charges of the Accountant.|
|(k)||The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this provision.|
Nothing in this Section (1) is intended to violate the Sarbanes-Oxley Act and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void.