Employment Agreement - RC Transaction Corp. and Brent M. Longnecker
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made as of April 1, 1999,
between Brent M. Longnecker ("Employee") and RC Transaction Corp. (the
"Company").
RECITALS
The Company desires to establish its right to the services of Employee in
the capacities described below, on the terms and conditions hereinafter set
forth, and Employee is willing to accept such employment on such terms and
conditions.
AGREEMENT
The parties agree as follows:
1. DUTIES
(a) The Company does hereby hire, engage, and employ Employee as the
Executive Vice President of the Company, and Employee does hereby accept and
agree to such hiring, engagement, and employment. During the Period of
Employment (as defined in Section 2), Employee shall serve the Company in such
position fully, diligently, competently, and in conformity with the provisions
of this Agreement, directives of the Chief Executive Officer of the Company, and
the corporate policies of the Company as they presently exist, and as such
policies may be amended, modified, changed, or adopted during the Period of
Employment, and Employee shall have duties and authority consistent with
Employee's position as Executive Vice President. If requested by the Company,
Employee shall also serve as a member of the Board and Board committees without
additional compensation.
(b) Throughout the Period of Employment, Employee shall devote his full
time, energy, and skill to the performance of his duties for the Company,
vacations and other leave authorized under this Agreement excepted. The
foregoing notwithstanding, Employee shall be permitted to (i) engage in
charitable and community affairs, (ii) act as a director of any corporations or
organizations outside the Company, not to exceed four (4) in number, and receive
compensation therefor, and (iii) to make investments of any character in any
business or businesses and to manage such investments (but not be involved in
the day-to-day operations of any such business); provided, in each case, and in
the aggregate, that such activities do not interfere with the performance of
Employee's duties hereunder or conflict with the provisions of Sections 12 and
13.
(c) Employee shall exercise due diligence and care in the performance of
his duties for and the fulfillment of his obligations to the Company under this
Agreement.
(d) During the Period of Employment, the Company shall furnish Employee
with office, secretarial and other facilities and services as are reasonably
necessary or appropriate for
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the performance of Employee's duties hereunder and consistent with his position
as the Executive Vice President of the Company.
(e) Employee hereby represents to the Company that the execution and
delivery of this Agreement by Employee and the Company and the performance by
Employee of Employee's duties hereunder shall not constitute a breach of, or
otherwise contravene, the terms of any employment or other agreement or policy
to which Employee is a party or otherwise bound.
2. PERIOD OF EMPLOYMENT
The "Period of Employment" shall, unless sooner terminated as provided
herein, be three (3) years commencing on May 1, 1999 (the "Effective Date") and
ending with the close of business on April 30, 2002. Notwithstanding the
preceding sentence, commencing with May 1, 2002 and on each May 1 thereafter
(each an "Extension Date"), the Period of Employment shall be automatically
extended for an additional one-year period, unless the Company or Employee
provides the other party hereto sixty (60) days' prior written notice before the
next scheduled Extension Date that the Period of Employment shall not be so
extended (the "Non-Extension Notice"). The term "Period of Employment" shall
include any extension that becomes applicable pursuant to the preceding
sentence.
3. COMPENSATION
(a) BASE SALARY. During the Period of Employment, the Company shall pay
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Employee, and Employee agrees to accept from the Company, in payment for his
services, a base salary of three hundred thousand dollars ($300,000) per year
("Base Salary"), payable in equal semi-monthly installments or at such other
time or times as Employee and the Company shall agree. The Chief Executive
Officer shall consider not less frequently than annually upward adjustment to
Employee's Base Salary. The determination of whether Employee's Base Salary will
be upwardly adjusted is within the sole and absolute discretion of the Chief
Executive Officer except as otherwise provided in the Stockholders Agreement (as
defined below). The Chief Executive Officer at any time or times may, but shall
have no obligation to, supplement Employee's salary by such bonuses and/or other
special payments and benefits as the Company in its sole and absolute discretion
may determine.
(b) ANNUAL INCENTIVE COMPENSATION. During the Period of Employment,
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Employee shall be entitled to participate in any annual incentive or bonus plan
or plans maintained by the Company for senior management employees of the
Company generally, in accordance with the terms, conditions, and provisions of
each such plan as the same may be changed, amended, or terminated, from time to
time.
(c) EQUITY COMPENSATION. During the Period of Employment, Employee shall be
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entitled to participate in any equity-based plan or arrangement, including, but
not limited to, stock options, stock appreciation rights, restricted stock, or
other equity incentive plans or arrangements maintained by the Company for
senior management employees of the Company generally, in accordance with the
terms, conditions, and provisions of each such plan or arrangement as the same
may be changed, amended, or terminated, from time to time.
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(d) LOAN. A loan of two hundred thousand dollars ($200,000) will be made to
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the Employee upon signing of this Agreement. Said loan will be interest free and
payable at the expiration of eight (8) years. Further, fifty thousand dollars
($50,000) will be forgiven on January 1, 2000. Additional amounts can be
forgiven at the discretion of the Chief Executive Officer. Finally, in the event
Employee is terminated by the Company for Cause or the Employee terminates his
employment without Good Reason, all remaining loan amounts owed will be due and
payable.
(e) CONTRACT REIMBURSEMENT. The Company shall reimburse Employee or
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directly pay for all reasonable consulting and legal fees and costs attributed
to the development, reviews and modifications of this Agreement and associated
consulting and legal services in accordance with the provisions of Section 4(d).
Such fees and costs shall not exceed one thousand dollars ($1,000). This
subsection (d) shall not be deemed to limit any of Employee's rights under
Section 22 ("Attorneys' Fees").
4. BENEFITS
(a) HEALTH AND WELFARE. During the Period of Employment, Employee shall be
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entitled to participate in all health and welfare benefit plans and programs and
all retirement, deferred compensation and similar plans and programs generally
available to all other senior management employees of the Company or to all
employees of the Company as in effect from time to time, subject to any
restrictions specified in such plans and programs.
(b) FRINGE BENEFITS. During the Period of Employment, Employee shall be
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entitled to participate in all fringe benefit plans and programs generally
available to all other senior management employees of the Company or to all
employees of the Company as in effect from time to time, subject to any
restrictions specified in such plans and programs.
(c) VACATION AND OTHER LEAVE. Employee shall be entitled to such amounts of
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paid vacation and other leave, but not less than four (4) weeks vacation per
twelve-month period of employment, as from time to time may be allowed to the
Company's senior management personnel generally, with such vacation to be
scheduled and taken in accordance with the Company's standard vacation policies
applicable to such personnel.
(d) BUSINESS EXPENSES. During the Period of Employment, reasonable business
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expenses incurred by Employee in the performance of Employee's duties hereunder
shall be reimbursed by the Company in accordance with the Company's business
expense reimbursement policies as in effect from time to time.
(e) AUTOMOBILE. To the extent provided to other senior officers or
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executives of the Company, during the Period of Employment, Employee shall be
entitled to receive an automobile allowance or a leased automobile and
reimbursement for expenses associated with the operation and maintenance of such
automobile. The Company will reimburse Employee upon presentation of vouchers
and documentation for any such operational and maintenance expenses which are
consistent with the usual accounting procedures of the Company.
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5. PUT AND CALL RIGHTS.
(a) EMPLOYEE'S STOCK. At any time, this Section 5 shall apply to all shares
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of the Company's common stock, par value one cent ($.01) per share, owned by
Employee at that time ("Employee's Stock"). As of the date hereof, twenty
thousand (20,000) shares of Employee's Stock ("Employee's Restricted Stock")
consist of shares of the Company's common stock that were issued pursuant to the
Company's 1998 Employee Stock Purchase Plan (the "Stock Purchase Plan") and the
January 11, 1999 Restricted Stock Agreement between Employee and the Company
(the "Restricted Stock Agreement"). The provisions of this Section 5 apply to
Employee's Stock, including Employee's Restricted Stock, notwithstanding any
provisions of the Stock Purchase Plan or the Restricted Stock Agreement to the
contrary; provided, however, that the Stock Purchase Plan and the Restricted
Stock Agreement shall otherwise continue in full force and effect with respect
to the Employee's Restricted Stock to the extent not inconsistent with the
express language of this Section 5.
(b) EMPLOYEE'S PUT RIGHT. If Employee's employment with the Company ends
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due to termination by the Company without Cause or resignation by Employee with
Good Reason prior to a Qualified Public Offering, then Employee may cause the
Company to purchase all or part of Employee's Stock (a "Put"), for a purchase
price equal to Fair Market Value, by giving the Company notice (the "Put
Notice") at any time within one-hundred eighty (180) days after such end of
employment. The Put Notice shall state the number of shares of Employee's Stock
with respect to which he is exercising a Put (the "Put Shares") and the Fair
Market Value thereof in Employee's good faith opinion.
(c) COMPANY'S CALL RIGHT. If Employee's employment with the Company ends
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due to termination by the Company or resignation by Employee prior to a
Qualified Public Offering, then the Company may purchase (i) in the case of
termination by the Company for Cause or Employee's resignation without Good
Reason, all or part of Employee's Stock, for a purchase price equal to (A) the
lesser of Fair Market Value or ten dollars ($10.00) per share with respect to
Unvested Employee's Stock and (B) Fair Market Value with respect to Vested
Employee's Stock; or (ii) in the case of termination by the Company without
Cause or Employee's resignation with Good Reason, up to but not exceeding sixty
percent (60%) of Employee's Stock, for consideration equal to Fair Market Value;
in each case (a "Call") by giving Employee notice (a "Call Notice") at any time
within one-hundred eighty (180) days after such termination or resignation. The
Call Notice shall state the number of shares of Employee's Stock with respect to
which the Company is exercising a Call (the "Call Shares") and the Fair Market
Value thereof in the Company's good faith opinion.
(d) PUT AND CALL RIGHTS UPON DEATH OR DISABILITY. Upon any termination of
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the Period of Employment and Employee's employment hereunder by reason of
Employee's death or Permanent Disability, Employee or his estate shall have a
Put right to cause the Company to purchase, and the Company shall have a Call
right to purchase from Employee or his estate, all or part of such shares of
Employee's Stock that have not been purchased by the Company or the Initial
Founders (as defined in the Stockholders Agreement dated as of the date hereof,
among the Company, Employee and certain other stockholders of the Company (the
"Stockholders Agreement")) pursuant to Section 3.3 of the Stockholders
Agreement, for consideration equal to Fair Market Value, in each case by giving
notice to the other party
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invoking this paragraph (d) (which notice shall be considered a Put Notice or
Call Notice, as the case may be, for the purposes of this Agreement) within
thirty (30) days after the date of the Transfer Notice (as defined in the
Stockholders Agreement).
(e) FAIR MARKET VALUE. "Fair Market Value" means the fair market value,
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without minority discount, per share of the Company's common stock on the date
of the Put Notice or the Call Notice, as the case may be, determined as follows:
(i) first, Employee and the Company shall attempt in good faith to agree
promptly upon the Fair Market Value; (ii) second, if Employee and the Company do
not agree upon the Fair Market Value within ten (10) days after the Put Notice
or the Call Notice, as the case may be, then Employee and the Company shall
agree upon an independent appraiser to determine the Fair Market Value; and
(iii) third, if Employee and the Company do not agree upon an independent
appraiser within twenty (20) days after the Put Notice or the Call Notice, as
the case may be, then Employee and the Company each shall promptly appoint one
independent appraiser, and such appraisers shall promptly appoint a third
independent appraiser, whereupon such third independent appraiser shall promptly
make its independent determination of the fair market value of the Company's
Common Stock, which determination shall be deemed the Fair Market Value;
provided, however, that if the Company's common stock is listed and actively
trading on the New York Stock Exchange, the American Stock Exchange or the
National Market System of the Nasdaq Stock Market, then the Fair Market Value
shall equal the average closing price of the Company's common stock on such
market during the twenty (20) trading days prior to the date of the Put Notice
or the Call Notice, as the case may be. The fees of any appraiser pursuant to
subsection (e)(ii) shall be borne by the Company. The fees of each appraiser
appointed by a party pursuant to subsection (e)(iii) shall be borne by the party
that appointed such appraiser, and the fees of the third appraiser pursuant to
subsection (e)(iii) shall be borne by the Company.
(f) PURCHASE. The closing of a Put or a Call, as the case may be, shall
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take place no later than fifteen (15) days after the determination of Fair
Market Value under subsection (e) above (the "Closing"). At the Closing, the
Company shall purchase from Employee, and Employee shall sell to the Company,
the Put Shares or the Call Shares, as the case may be, and the Company shall pay
to Employee in cash the purchase price specified above.
(g) VESTING OF EMPLOYEE'S STOCK. Employee's Stock shall be deemed to be
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vested ("Vested Employee's Stock") as follows: (i) one-third (1/3) of the shares
of Employee's Stock owned by Employee as of the date hereof shall be deemed
vested as of the date hereof; (ii) an additional [one-sixth (1/6)] of the shares
of Employee's Stock owned by Employee as of the date hereof shall be deemed
vested as of each of the next [four] anniversaries of the date of this
Agreement; and (iii) all shares of Employee's Stock acquired by Employee after
the date hereof shall thereupon be deemed fully vested for all purposes of this
Agreement (unless such shares are restricted stock acquired under the Restricted
Stock Plan or any similar plan, in which case such shares shall be subject to
the vesting and other terms and conditions of the Restricted Stock Plan or other
such plan, notwithstanding this clause (iii)). "Unvested Employee's Stock" means
such shares of Employee's Stock that are not deemed vested under this subsection
(g). The terms "vested" and "unvested" solely relate to the determination of the
purchase price for Call Shares in the event of a Call by the Company due to the
Company's termination of Employee's employment for Cause or Employee's
resignation without Good Reason, and shall
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not be construed to limit any ownership, voting or other rights of Employee with
respect to any Employee's Stock.
(h) QUALIFIED PUBLIC OFFERING. As used in this Section 5, "Qualified Public
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Offering" means the sale, in an underwritten public offering, registered under
the Securities Act of 1933, of shares of the Company's common stock, (A)
immediately after which the number of shares of common stock then publicly held
constitute at least twenty percent (20%) of the outstanding shares of common
stock, on a fully diluted basis, and (B) which results in cash proceeds to the
Company and/or its shareholders which, when aggregated with any cash proceeds
paid to the Company and/or its shareholders in connection with any prior
underwritten registered public offerings of the Company's common stock, equals
or exceeds twenty-five million dollars ($25,000,000).
(i) RESTRICTION ON PUT AND CALL RIGHTS. Notwithstanding any other provision
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of this Agreement, if it is not possible for the Company to pay, in accordance
with paragraph (f) above, the required cash consideration for any shares of
Employee's Stock with respect to which Employee or the Company has attempted to
exercise a Put or Call, as the case may be, without such payment constituting a
default or an event of default or causing a mandatory prepayment requirement
under the terms of any agreement for indebtedness of the Company or any of its
subsidiaries to which the Company or any of its subsidiaries is a party, then
Employee or the Company shall not have the right to exercise such Put or Call,
as the case may be, with respect to such shares; provided, however, that if
there are any such shares in the event of a Put, then Employee or his estate
shall have the right to sell or otherwise dispose of such shares to a third
party (the "Third Party Buyer") upon such terms as may be agreed upon by
Employee or his estate and the Third Party Buyer, subject to the following
procedure:
(i) Employee or his estate shall give each Evercore Stockholder (as such
term is defined in the Stockholders Agreement) and the Initial Founders
(collectively, the "Associated Buyers") written notice (the "Sale
Notice") setting forth the name of the Third Party Buyer, the terms
(including a description of the cash or other type of consideration to
be paid) agreed upon by Employee or his estate and the Third Party Buyer
(the "Sale Terms"), the number of shares of Employee's Stock to be sold
(the "Sale Shares"), and the purchase price per share agreed upon by
Employee or his estate and the Third Party Buyer (the "Sale Price").
(ii) Within thirty (30) days after the Sale Notice, an Associated Buyer
shall have the right, by giving Employee or his estate written notice
(the "Exercise Notice") invoking its rights under this subsection 5(j),
to purchase, for the Sale Price and in accordance with the Sale Terms, a
number of the Sale Shares equal to (A) a fraction, the numerator of
which is the number of shares of the Company's common stock then owned
of record by such Associated Buyer and the denominator of which is the
aggregate number of shares then owned of record by the Associated
Buyers, multiplied by (B) the number of Sale Shares. Any Sale Shares
that an Associated Buyer would be entitled to purchase under this
subsection 5(j) but for which such Associated Buyer did not give an
Exercise Notice within such thirty (30)-day period may be purchased by
the remaining Associated Buyers (by giving Employee or his estate
supplemental written notice
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within thirty-five (35) days of the Sale Notice) in such proportion as
each such Associated Buyer's then current record ownership of the
Company's common stock bears to the aggregate record ownership of the
Company's common stock by all such remaining Associated Buyers.
(iii) If the Associated Buyers elect to purchase all of the Sale Shares
in accordance with this subsection 5(j), then such purchase shall be
consummated at the Sale Price and upon the Sale Terms within sixty (60)
days after the Sale Notice. If the Associated Buyers do not elect to
purchase all of the Sale Shares in accordance with this subsection 5(j),
then Employee or his estate may transfer the Sale Shares to the Third
Party Buyer, provided such transfer is for the Sale Price and in
accordance with the Sale Terms.
6. DEATH OR DISABILITY
(a) DEFINITION OF PERMANENTLY DISABLED AND PERMANENT DISABILITY. For
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purposes of this Agreement, the terms "Permanently Disabled" and "Permanent
Disability" shall mean Employee's inability, because of physical or mental
illness or injury, to perform substantially all of his customary duties pursuant
to this Agreement, and the continuation of such disabled condition for a period
of ninety (90) continuous days, or for not less than one hundred eighty (180)
days during any continuous twenty-four (24) month period. Whether Employee is
Permanently Disabled shall be certified to the Company by a Qualified Physician
(as hereinafter defined). The determination of the individual Qualified
Physician shall be binding and conclusive for all purposes. As used herein, the
term "Qualified Physician" shall mean any medical doctor who is licensed to
practice medicine in the State of Employee's Residence. Employee and the Company
may in any instance, and in lieu of a determination by a Qualified Physician,
agree between themselves that Employee is Permanently Disabled. The terms
"Permanent Disability" and "Permanently Disabled" as used herein may have
meanings different from those used in any disability insurance policy or program
maintained by Employee or the Company.
(b) VESTING ON DEATH OR DISABILITY. Upon any termination of the Period of
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Employment and Employee's employment hereunder by reason of Employee's death or
Permanent Disability, as defined in Section 6(a) ("Death or Disability -
Definition of Permanently Disabled and Permanent Disability"), any remaining
Unvested Employee's Stock shall thereupon automatically be deemed Vested
Employee's Stock, notwithstanding any other provision of this Agreement.
(c) TERMINATION DUE TO DEATH OR DISABILITY. If Employee dies or becomes
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Permanently Disabled during the Period of Employment, the Period of Employment
and Employee's employment shall automatically cease and terminate as of the date
of Employee's death or the date of Permanent Disability (which date shall be
determined by the Qualified Physician or by agreement, under Section 6(a) above,
and referred to as the "Disability Date"), as the case may be. In the event of
the termination of the Period of Employment and Employee's employment hereunder
due to Employee's death or Permanent Disability, Employee or his estate shall be
entitled to receive:
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(i) a lump sum cash payment, payable within ten (10) business days
after termination of Employee's employment, equal to the sum of (A) any accrued
but unpaid Base Salary as of the date of Employee's termination of employment
hereunder and (B) any earned but unpaid annual incentive compensation in respect
of the most recently completed fiscal year preceding Employee's termination of
employment hereunder (the "Earned/Unpaid Annual Bonus"); and
(ii) a pro-rated portion of the target annual incentive compensation,
if any, that Employee would have been entitled to receive pursuant to Section
3(b) in respect of the fiscal year in which termination of Employee's employment
occurs, based upon the percentage of such fiscal year that shall have elapsed
through the date of Employee's termination of employment, payable when such
annual incentive would otherwise have been payable had Employee's employment not
terminated; and
(iii) such employee benefits described in Sections 4(a), 4(b) and 4(c)
("Employee Benefits"), if any, as to which Employee may be entitled under the
employee benefit plans and arrangements of the Company.
Notwithstanding any other provision of this Agreement, following such
termination of Employee's employment due to Employee's death or Permanent
Disability, except as set forth in Sections 6(b) and 6(c) and the Company's
obligations under Section 5, and except for Employee's rights (if any) under the
plans, arrangements and programs referenced in Sections 3(b), 3(c) and 4,
Employee shall have no further rights to any compensation or other benefits
under this Agreement.
In the event Employee's employment is terminated on account of Employee's
Permanent Disability, he shall, so long as his Permanent Disability continues,
remain eligible for all benefits provided under any long-term disability
programs of the Company in effect at the time of such termination, subject to
the terms and conditions of any such programs, as the same may be changed,
modified, or terminated for or with respect to all senior management personnel
of the Company.
7. TERMINATION BY THE COMPANY
(a) TERMINATION FOR CAUSE. The Company may, by providing written notice to
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Employee, terminate the Period of Employment and Employee's employment hereunder
for Cause at any time. The term "Cause" for purpose of this Agreement shall
mean:
(i) Employee's conviction of or entrance of a plea of guilty or nolo
contendere to a felony; or
(ii) fraudulent conduct by Employee in connection with the business
affairs of the Company; or
(iii) theft, embezzlement, or other criminal misappropriation of funds
by Employee from the Company; or
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(iv) Employee's continued and substantial failure to perform the
duties hereunder (other than as a result of total or partial
incapacity due to physical illness), which failure is not cured
within thirty (30) days following written notice by the Company
to Employee of such failure; provided, however, that (A) it shall
not be Cause if Employee is making good faith efforts to perform
duties and (B) this provision shall not apply to any qualitative
dissatisfaction by the Company with Employee's performance of his
duties hereunder; or
(v) Employee's continued breach of the provisions of Sections 12 and
13 of this Agreement, which breach is not cured within thirty
(30) days following written notice by the Company to Employee of
such breach.
If Employee's employment is terminated for Cause, the termination shall
take effect on the effective date (pursuant to Section 24 ("Notices")) of
written notice of such termination to Employee.
In the event of the termination of the Period of Employment and Employee's
employment hereunder due to a termination by the Company for Cause, then
Employee shall be entitled to receive: (i) a lump sum cash payment, payable
within ten (10) business days after termination of Employee's employment equal
to the sum of (A) accrued but unpaid Base Salary as of the date of termination
of Employee's employment hereunder and (B) any Earned/Unpaid Annual Bonus; and
(ii) such Employee Benefits, if any, as to which Employee may be entitled under
the employee benefit plans and arrangements of the Company.
Notwithstanding any other provision of this Agreement, following such
termination of Employee's employment due to termination by the Company for
Cause, except as set forth in this Section 7(a), and except for Employee's
rights (if any) under the plans, arrangements and programs referenced in
Sections 3(b), 3(c) and 4, Employee shall have no further rights to any
compensation or other benefits under this Agreement.
If the Company attempts to terminate Employee's employment pursuant to this
Section 7(a) and it is ultimately determined that the Company lacked Cause, the
provisions of Section 7(b) ("Termination by the Company-Termination Without
Cause") shall apply and, in addition to any other remedies that Employee may
have, Employee shall be entitled to receive the payments called for by Section
7(b) ("Termination by the Company-Termination Without Cause") with interest on
any past due payments at the rate of eight percent (8%) per year from the date
on which the applicable payment would have been made pursuant to Section 7(b)
("Termination by the Company-Termination Without Cause") plus Employee's costs
and expenses (including but not limited to reasonable attorneys' fees) incurred
in connection with such dispute.
(b) TERMINATION WITHOUT CAUSE. The Company may, with or without reason,
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terminate the Period of Employment and Employee's employment hereunder without
Cause at any time, by providing Employee written notice of such termination. In
the event of the termination of the Period of Employment and Employee's
employment hereunder due to a
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termination by the Company without Cause (other than due to Employee's death or
Permanent Disability), then Employee shall be entitled to receive:
(i) a lump sum cash payment equal to the sum of (A) any accrued
but unpaid Base Salary as of the date of Employee's termination of employment
hereunder, (B) the Earned/Unpaid Annual Bonus, if any, (C) the target annual
incentive compensation, if any, that Employee would have been entitled to
receive pursuant to Section 3(b) in respect of the fiscal year in which
termination of Employee's employment occurs and (D) an amount equal to the
product of (x) the Employee's then current Base Salary times (y) the greater of
(I) three (3) or (II) the number of years (including fractions thereof)
remaining in the Period of Employment as of the date of Employee's termination
of employment (determined without regard to Employee's termination of employment
and without regard to any further extensions pursuant to Section 2). The lump
sum cash payment shall be made in two installments with fifty percent (50%) of
the lump sum payable within ten (10) business days after termination of
Employee's employment and, provided Employee is in compliance with Section 12 of
the Agreement ("Non- Competition"), fifty percent (50%) plus interest at a rate
of eight percent (8%) per year from the date of Employee's termination of
employment payable one (1) year after the date of Employee's termination of
employment; except in the event that Employee terminates his Employment pursuant
to Section 8(b)(iv) ("Termination by Employee-Termination for Good Reason -
Change of Control"), wherein one hundred percent (100%) of the lump sum cash
payment shall be made within ten (10) business days after termination of
Employee's employment;
(ii) such Employee Benefits, if any, as to which Employee may
be entitled under the employee benefit plans and arrangements of the Company;
and
(iii) continued participation in the Company's group health
insurance plans at the Company's expense until the earlier of (A) the expiration
of the three (3) years from the effective date of termination or (B) Employee's
eligibility for participation in the group health plan of a subsequent employer
or entity for which Employee provides consulting services;
provided, however, that the amount otherwise payable to Employee pursuant to
Section 7(b)(i)(D) shall be reduced by the amount of any cash severance or
termination benefits paid to Employee under any other severance plan, severance
program or severance arrangement of the Company and its affiliates (but not
reduced by any other payment to Employee whatsoever, including (without
limitation) any payment by the Company or any affiliate of the Company in
consideration of stock or any other property, whether pursuant to Section 5 of
this Agreement or otherwise).
Notwithstanding any other provision of this Agreement, following such
termination of Employee's employment due to termination by the Company without
Cause, except as set forth in this Section 7(b) and the Company's obligations
under Section 5, and except for Employee's rights (if any) under the plans,
arrangements and programs referenced in Sections 3(b), 3(c) and 4, Employee
shall have no further rights to any compensation or other benefits under this
Agreement.
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8. TERMINATION BY EMPLOYEE
(a) TERMINATION WITHOUT GOOD REASON. Employee shall have the right to
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terminate the Period of Employment and Employee's employment hereunder at any
time without Good Reason (as defined below) upon thirty (30) days prior written
notice of such termination to the Company. Any such termination by the Employee
without Good Reason shall be treated for all purposes of this Agreement as a
termination by the Company for Cause and the provisions of Section 7(a) shall
apply.
(b) TERMINATION WITH GOOD REASON. The Employee may terminate the Period of
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Employment and resign from employment hereunder for "Good Reason":
(i) if the Company requires Employee to relocate his principal office
to a location outside of Houston, Texas, without Employee's
consent; or
(ii) if the Company fails to provide Employee with the compensation
and benefits called for by this Agreement; or
(iii) if the Company (A) assigns Employee to a position other than
Executive Vice President reporting directly to the Chief
Executive Officer, or substantially diminishes Employee's
assignment, duties, responsibilities, or operating authority from
those specified in Section 1 ("Duties"); or
(iv) for any reason following a Change of Control, provided, however,
that Employee remains employed by the Company for the six (6)
months following a Change of Control and notifies the Company in
writing (pursuant to Section 24 ("Notices")) within thirty (30)
days after the expiration of the six-month period following the
Change of Control of his decision to terminate his employment.
In such case, Employee's employment will terminate thirty (30)
days after giving said notice; or
(v) if the Company materially breaches any provision of this
Agreement; or
(vi) if at any time during the term of this Agreement, either (A)
Donald B. Murray, (B) an Initial Founder (as defined in the
Stockholders Agreement), or (C) Employee is not the Chief
Executive Officer of the Company reporting directly to the Board,
provided, however, that Employee remains employed by the Company
for the six (6) months following the occurrence of the condition
and notifies the Company in writing (pursuant to Section 24
("Notices")) within thirty (30) days after the expiration of the
six-month period of his decision to terminate his employment. In
such case, Employee's employment will terminate thirty (30) days
after giving said notice; provided, however, that Employee shall
be entitled to only sixty-six percent (66%) of any amounts
payable under Section 7(b)(i) ("Termination without Cause") in
the event that Donald B. Murray has ceased to be Chief Executive
Officer for any reason
-11-
<PAGE>
other than the Company's termination of his employment without
Cause or his resignation for Good Reason
provided, however, that none of the events described in Subsection 8(b)(ii),
8(b)(iii) or 8(b)(v) shall constitute Good Reason unless Employee shall have
notified the Company in writing describing the events which constitute Good
Reason and then only if the Company shall have failed to cure such event within
thirty (30) days after the Company's receipt of such written notice.
Any such termination by Employee for Good Reason shall be treated for all
purposes of this Agreement as a termination by the Company without Cause and the
provisions of Section 7(b) shall apply; provided, however, that if Employee
attempts to resign for Good Reason pursuant to this Section 8(b) and it is
ultimately determined that Good Reason did not exist, Employee shall be deemed
to have resigned from employment without Good Reason and the provisions of
Section 8(a) ("Termination Without Good Reason") and, by reference therein, the
provisions of Section 7(a) ("Termination For Cause"), shall apply.
For purposes of this Agreement, a "Change of Control" shall be deemed to
have occurred upon the occurrence of the following: Evercore Capital Partners
L.P., directly or through its affiliates that are or have become parties to the
Stockholders Agreement, ceases to own at least fifty percent (50%) of the
Company's Voting Securities after giving effect to Section 4.8(a) of the
Stockholders Agreement, (i) as a result of or in connection with any transaction
or event including (without limitation), (A) in connection with a merger or
consolidation involving the Company or a subsidiary of the Company, or (B) the
divestment by the Company or a subsidiary of the Company, by sale, liquidation,
foreclosure or any other means, of all or substantially all of its assets or
business as held or conducted as of the date hereof, but (ii) notwithstanding
the foregoing clause (i), not solely as a result of a Qualified Public Offering.
"Voting Securities" means securities of the Company entitled to vote in the
election of the Company's directors.
9. EXPIRATION OF PERIOD OF EMPLOYMENT
(a) ELECTION NOT TO EXTEND PERIOD OF EMPLOYMENT. If either party elects
-------------------------------------------
not to extend the Period of Employment pursuant to Section 2, unless Employee's
employment is earlier terminated pursuant to Sections 6, 7 or 8, termination of
Employee's employment hereunder shall be deemed to occur on the close of
business on the day immediately preceding the anniversary of the next Extension
Date following the delivery of the Non-Extension Notice pursuant to Section 2.
If the Company elects not to extend the Period of Employment, Employee's
termination will be treated for all purposes under this Agreement as a
termination by the Company without Cause under Section 7(b). If Employee elects
not to extend the Period of Employment, Employee's termination will be treated
for all purposes under this Agreement as a termination by Employee without Good
Reason under Section 8(a).
(b) CONTINUED EMPLOYMENT BEYOND EXPIRATION OF PERIOD OF EMPLOYMENT. Unless
--------------------------------------------------------------
the parties otherwise agree in writing, continuation of Employee's employment
with the Company beyond expiration of the Period of Employment shall be deemed
an employment at will and shall not be deemed to extend any of the provisions of
this Agreement
-12-
<PAGE>
and Employee's employment may thereafter be terminated at will by either
Employee or the Company; provided, however, that the provisions of Sections 12,
13 and 14 shall survive any termination of this Agreement or Employee's
termination of employment hereunder.
10. GROSS-UP
Notwithstanding any other provision of this Agreement, if and to the extent
any payment made under this Agreement, either alone or in conjunction with other
payments Employee has the right to receive either directly or indirectly from
the Company, would constitute an "excess parachute payment" under Section 280G
of the Internal Revenue Code of 1986, as amended, then Employee shall be
entitled to receive an excise tax gross-up payment not exceeding seven hundred
fifty thousand dollars ($750,000) in accordance with Appendix A. However, in an
effort to preserve acquirer's complete deductibility and pay no gross up, all
parties will put forth a "best faith effort" to insure all monies payable are,
in fact, reasonable under Section 280G and Section 162 of the Internal Revenue
Code of 1986, as amended.
11. MEANS AND EFFECT OF TERMINATION
Any termination of Employee's employment under this Agreement shall be
communicated by written notice of termination from the terminating party to the
other party. The notice of termination shall indicate the specific provision(s)
of this Agreement relied upon in effecting the termination and shall set forth
in reasonable detail the facts and circumstances alleged to provide a basis for
termination, if any such basis is required by the applicable provision(s) of
this Agreement.
12. NON-COMPETITION
Employee acknowledges and recognizes the highly competitive nature of the
businesses of the Company and its affiliates and accordingly agrees as follows:
(a) During the Period of Employment and, for a period of two (2) years
following the date Employee ceases to be employed by the Company for any reason
(the "Restricted Period"), Employee will not, directly or indirectly, (i) engage
in any business for Employee's own account that competes with the business of
the Company or its affiliates (with the exception of consulting, but including,
without limitation, businesses which the Company or its affiliates have specific
plans to conduct in the future and as to which Employee is aware of such
planning), (ii) enter the employ of, or render any services (other than
consulting) to any person engaged in any business that competes with the
business of the Company or its affiliates, (iii) acquire a financial interest in
any person engaged in any business that competes with the business of the
Company or its affiliates, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, trustee or consultant, or (iv)
interfere with business relationships (whether formed before or after the date
of this Agreement) between the Company or any of its affiliates and customers,
suppliers, partners, members or investors of the Company or its affiliates.
(b) Notwithstanding anything to the contrary in this Agreement, Employee
may, directly or indirectly, own, solely as an investment, securities of any
person engaged in the business of the Company or its affiliates which are
publicly traded on a national or regional stock
-13-
<PAGE>
exchange or on an over-the- counter market if Employee (i) is not a controlling
person of, or a member of a group which controls, such person and (ii) does not,
directly or indirectly, own five percent (5%) or more of any class of securities
of such person.
(c) During the Restricted Period, Employee will not, directly or
indirectly, (i) solicit or encourage any employee of the Company or its
affiliates to leave the employment of the Company or its affiliates, or (ii)
hire any such employee who was employed by the Company or its affiliates as of
the date of Employee's termination of employment with the Company or who left
the employment of the Company or its affiliates within one (1) year prior to or
after the termination of Employee's employment with the Company.
(d) During the Restricted Period, Employee will not, directly or
indirectly, solicit or encourage to cease to work with the Company or its
affiliates any consultant then under contract with the Company or its
affiliates.
(e) It is expressly understood and agreed that although Employee and the
Company consider the restrictions contained in this Section 12 to be reasonable,
if a final judicial determination is made by a court of competent jurisdiction
that the time or territory or any other restriction contained in this Agreement
is an unenforceable restriction against Employee, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such maximum extent as such court may
judicially determine or indicate to be enforceable. Alternatively, if any court
of competent jurisdiction finds that any restriction contained in this Agreement
is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
13. CONFIDENTIALITY.
Employee will not at any time (whether during or after his employment with
the Company), unless compelled by lawful process, disclose or use for his own
benefit or purposes or the benefit or purposes of any other person, firm,
partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, or other confidential data or
information relating to customers, development programs, costs, marketing,
trading, investment, sales activities, promotion, credit and financial data,
manufacturing processes, financing methods, plans, or the business and affairs
of the Company generally, or of any subsidiary or affiliate of the Company;
provided that the foregoing shall not apply to information which is not unique
--------
to the Company or which is generally known to the industry or the public other
than as a result of Employee's breach of this covenant. Employee agrees that
upon termination of his employment with the Company for any reason, he will
return to the Company immediately all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or therefrom, in any
way relating to the business of the Company and its affiliates, except that he
may retain personal notes, notebooks and diaries that do not contain
confidential information of the type described in the preceding sentence.
Employee further agrees that he will not retain or use for his account at any
time any trade names, trademark or other proprietary business designation used
or owned in connection with the business of the Company or its affiliates.
-14-
<PAGE>
14. SPECIFIC PERFORMANCE
Employee acknowledges and agrees that the Company's remedies at law for a
breach or threatened breach of any of the provisions of Section 12 or Section 13
would be inadequate and, in recognition of this fact, Employee agrees that, in
the event of such a breach or threatened breach, in addition to any remedies at
law, the Company, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
order, temporary or permanent injunction or any other equitable remedy which may
then be available.
15. ASSIGNMENT
This Agreement is personal in its nature and neither of the parties hereto
shall, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder; provided, however, that, in the event of a
merger, consolidation, or transfer or sale of all or substantially all of the
assets of the Company with or to any other individual(s) or entity, this
Agreement shall, subject to the provisions hereof, be binding upon and inure to
the benefit of such successor and such successor shall discharge and perform all
the promises, covenants, duties, and obligations of the Company hereunder.
16. GOVERNING LAW
This Agreement and the legal relations hereby created between the parties
hereto shall be governed by and construed under and in accordance with the
internal laws of the State of Texas, without regard to conflicts of laws
principles thereof.
17. ENTIRE AGREEMENT
This Agreement embodies the entire agreement of the parties hereto
respecting the matters within its scope. This Agreement supersedes all prior
agreements of the parties hereto on the subject matter hereof. Any prior
negotiations, correspondence, agreements, proposals, or understandings relating
to the subject matter hereof shall be deemed to be merged into this Agreement
and to the extent inconsistent herewith, such negotiations, correspondence,
agreements, proposals, or understandings shall be deemed to be of no force or
effect. There are no representations, warranties, or agreements, whether
express or implied, or oral or written, with respect to the subject matter
hereof, except as set forth herein.
18. MODIFICATIONS
This Agreement shall not be modified by any oral agreement, either express
or implied, and all modifications hereof shall be in writing and signed by the
parties hereto.
-15-
<PAGE>
19. WAIVER
Failure to insist upon strict compliance with any of the terms, covenants,
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition, nor shall any waiver or relinquishment of, or failure to insist upon
strict compliance with, any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
20. NUMBER AND GENDER
Where the context requires, the singular shall include the plural, the
plural shall include the singular, and any gender shall include all other
genders.
21. SECTION HEADINGS
The section headings in this Agreement are for the purpose of convenience
only and shall not limit or otherwise affect any of the terms hereof.
22. ATTORNEYS' FEES
Employee and the Company agree that in any dispute resolution proceedings
arising out of this Agreement, the prevailing party shall be entitled to its or
his reasonable attorneys' fees and costs incurred by it or him in connection
with resolution of the dispute in addition to any other relief granted.
23. SEVERABILITY
In the event that a court of competent jurisdiction determines that any
portion of this Agreement is in violation of any statute or public policy, then
only the portions of this Agreement which violate such statute or public policy
shall be stricken, and all portions of this Agreement which do not violate any
statute or public policy shall continue in full force and effect. Furthermore,
any court order striking any portion of this Agreement shall modify the stricken
terms as narrowly as possible to give as much effect as possible to the
intentions of the parties under this Agreement.
24. NOTICES
All notices under this Agreement shall be in writing and shall be either
personally delivered or mailed postage prepaid, by certified mail, return
receipt requested:
(a) if to the Company:
RC Transaction Corp.
c/o Re:sources Connection LLC
3 Imperial Promenade, Suite 600
Santa Ana, California 92707-5902
Attn: Donald B. Murray
-16-
<PAGE>
With copies to:
David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
Mario A. Ponce, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue, 26th Floor
New York, NY 10017
Evercore Capital Partners, L.P.
65 East 55th Street
33rd Floor
New York, New York 10022
Attn: David G. Offensend
(b) if to Employee:
Brent M. Longnecker
RC Transaction Corp.
c/o Re:sources Connection LLC
333 Clay Street
Houston, Texas 77002-4196
With a copy to:
David A. Krinsky, Esq.
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660
Notice shall be effective when personally delivered, or five (5) business days
after being so mailed.
25. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same instrument.
26. 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.
[Remainder of Page Intentionally Left Blank]
-17-
<PAGE>
IN WITNESS WHEREOF, the Company and Employee have executed this Employment
Agreement as of the date first above written.
THE COMPANY:
By: /s/ Donald B. Murray
-----------------------------------
Name: Donald B. Murray
-----------------------------------
Title: President
-----------------------------------
EMPLOYEE:
/s/ Brent M. Longnecker
-------------------------------------------
Brent M. Longnecker
-18-
<PAGE>
APPENDIX A
----------
(Gross-Up Provisions)
(a) In the event it is determined (pursuant to (b) below) or finally
determined (as defined in (c)(iii) below) that any payment, distribution,
transfer, benefit or other event with respect to the Company or a successor,
direct or indirect subsidiary or affiliate of the Company (or any successor of
affiliate of any of them, and including any benefit plan of any of them), and
arising in connection with an event described in Section 280G(b)(2)(A)(i) of the
Internal Revenue Code of 1986, as amended (the "Code"), occurring after the
Effective Date, to or for the benefit Employee or Employee's dependents, heirs
or beneficiaries (whether such payment, distribution, transfer, benefit or other
event occurs pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Appendix A) (each a "Payment" and collectively the "Payments") is or was subject
to the excise tax imposed by Section 4999 of the Code, and any successor
provision or any comparable provision of state or local income tax law
(collectively, "Section 4999"), or any interest, penalty or addition to tax is
or was incurred by Employee with respect to such excise tax (such excise tax,
together with any such interest, penalty, addition to tax, and costs (including
professional fees)) hereinafter collectively referred to as the "Excise Tax"),
then, within 10 days after such determination or final determination, as the
case may be, the Company shall pay to Employee (or to the applicable taxing
authority on Employee's behalf) an additional cash payment (hereinafter referred
to as the "Gross-Up Payment") equal to the lesser of (i) $750,000 or (ii) an
amount such that after payment by Employee of all taxes, interest, penalties,
additions to tax and costs imposed or incurred with respect to the Gross-Up
Payment (including, without limitation, any income and excise taxes imposed upon
the Gross-Up Payment), Employee retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon such Payment or Payments. Subject to the
limitations in clause (i) of the preceding sentence, this provision is intended
to put Employee in the same position as Employee would have been had no Excise
Tax been imposed upon or incurred as a result of any Payment.
(b) Except as provided in subsection (c) below, the determination that a
Payment is subject to an Excise Tax shall be made in writing by a certified
public accounting firm selected by Employee ("Employee's Accountant"). Such
determination shall include the amount of the Gross-Up Payment and detailed
computations thereof, including any assumptions used in such computations (the
written determination of the Employee's Accountant, hereinafter, the "Employee's
Determination"). The Employee's Determination shall be reviewed on behalf of
the Company by a certified public accounting firm selected by the Company (the
"Company's Accountant"). The Company shall notify Employee within 10 business
days after receipt of the Employee's Determination of any disagreement or
dispute therewith, and failure to so notify within that period shall be
considered an agreement by the Company to make payment as provided in subsection
(a) above within 10 days from the expiration of such 10 business-day period. In
the event of an objection by the Company to the Employee's Determination, any
amount not in dispute shall be paid within 10 days following the 10 business-day
period referred to herein, and with respect to the amount in dispute the
Employee's Accountant and the Company's Accountant shall jointly select a third
nationally recognized certified public accounting firm to resolve the dispute
and the decision of such third firm shall be final, binding and conclusive upon
the Employee and the Company. In such a case, the third accounting firm's
Appendix A-1
<PAGE>
findings shall be deemed the binding determination with respect to the amount in
dispute, obligating the Company to make any payment as a result thereof within
10 days following the receipt of such third accounting firm's determination.
All fees and expenses of each of the accounting firms referred to in this
Appendix A shall be borne solely by the Company.
(c) (i) Employee shall notify the Company in writing of any claim by the
Internal Revenue Service (or any successor thereof) or any state or local taxing
authority (individually or collectively, the "Taxing Authority") that, if
successful, would require the payment by the Company of a Gross-Up Payment.
Such notification shall be given as soon as practicable but no later than 30
days after Employee receives written notice of such claim and shall apprise the
Company of the nature of such claim and the date on which such claim is
requested to be paid; provided, however, that failure by Employee to give such
notice within such 30-day period shall not result in a waiver or forfeiture of
any of Employee's rights under Section 10 and this Appendix A except to the
extent of actual damages suffered by the Company as a result of such failure.
Employee shall not pay such claim prior to the expiration of the 15-day period
following the date on which Employee gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes, interest, penalties
or additions to tax with respect to such claim is due). If the Company notifies
Employee in writing prior to the expiration of such 15-day period (regardless of
whether such claim was earlier paid as contemplated by the preceding
parenthetical) that it desires to contest such claim (and demonstrates to the
reasonable satisfaction of Employee its ability to make the payments to Employee
which may ultimately be required under this section before assuming
responsibility for the claim), Employee shall:
(A) give the Company any information reasonably requested by the
Company relating to such claim;
(B) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal
representation with respect to such claim by an attorney selected
by the Company that is reasonably acceptable to Employee;
(C) cooperate with the Company in good faith in order effectively
to contest such claim; and
(D) permit the Company to participate in any proceedings relating
to such claim; provided, however, that the Company shall bear and
pay directly all attorneys fees, costs and expenses (including
additional interest, penalties and additions to tax) incurred in
connection with such contest and shall indemnify and hold
Employee harmless, on an after-tax basis, for all taxes
(including, without limitation, income and excise taxes),
interest, penalties and additions to tax imposed in relation to
such claim and in relation to the payment of such costs and
expenses or indemnification. Without limitation on the foregoing
provisions of this Appendix A, and to the extent its actions do
not unreasonably interfere with or prejudice Employee's disputes
with the Taxing Authority as to other issues, the Company shall
control all proceedings taken in
Appendix A-2
<PAGE>
connection with such contest and, in its reasonable discretion,
may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the Taxing Authority
in respect of such claim and may, at its sole option, either
direct Employee to pay the tax, interest or penalties claimed and
sue for a refund or contest the claim in any permissible manner,
and Employee agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company
shall determine; provided, however, that if the Company directs
Employee to pay such claim and sue for a refund, the Company
shall advance an amount equal to such payment to Employee, on an
interest-free basis, and shall indemnify and hold Employee
harmless, on an after-tax basis, from all taxes (including,
without limitation, income and excise taxes), interest, penalties
and additions to tax imposed with respect to such advance or with
respect to any imputed income with respect to such advance, as
any such amounts are incurred; and, further, provided, that any
extension of the statute of limitations relating to payment of
taxes, interest, penalties or additions to tax for the taxable
year of Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount;
and, provided, further, that any settlement of any claim shall be
reasonably acceptable to Employee and the Company's control of
the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder, and Employee shall
be entitled to settle or contest, as the case may be, any other
issue.
(ii) If, after receipt by Employee of an amount advanced by the
Company pursuant to paragraph (c)(i), Employee receives any refund
with respect to such claim, Employee shall (subject to the Company's
complying with the requirements of this Appendix A) promptly pay to
the Company an amount equal to such refund (together with any interest
paid or credited thereof after taxes applicable thereto), net of any
taxes (including, without limitation, any income or excise taxes),
interest, penalties or additions to tax and any other costs incurred
by Employee in connection with such advance, after giving effect to
such repayment. If, after the receipt by Employee of an amount
advanced by the Company pursuant to paragraph (c)(i), it is finally
determined that Employee is not entitled to any refund with respect to
such claim, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall be treated
as a Gross-Up Payment and shall offset, to the extent thereof, the
amount of any Gross-Up Payment otherwise required to be paid.
(iii) For purposes of this Appendix A, whether the Excise Tax is
applicable to a Payment shall be deemed to be "finally determined"
upon the earliest of: (A) the expiration of the 15-day period referred
to in paragraph (c)(i) above if the Company has not notified Employee
that it intends to contest the underlying claim, (B) the expiration of
any period following which no right of appeal exists, (C) the date
upon which a closing agreement or similar agreement with respect to
the claim is executed by Employee and the Taxing Authority
Appendix A-3
<PAGE>
(which agreement may be executed only in compliance with this Appendix
A), (D) the receipt by Employee of notice from the Company that it no
longer seeks to pursue a contest (which shall be deemed received if
the Company does not, within 15 days following receipt of a written
inquiry from Employee, affirmatively indicate in writing to Employee
that the Company intends to continue to pursue such contest).
(d) As a result of uncertainty in the application of Section 4999 that may
exist at the time of any determination that a Gross-Up Payment is due, it may be
possible that in making the calculations required to be made hereunder, the
parties or their accountants shall determine that a Gross-Up Payment need not be
made (or shall make no determination with respect to a Gross-Up Payment) that
properly should be made ("Underpayment"), or that a Gross-Up Payment not
properly needed to be made should be made ("Overpayment"). The determination of
any Underpayment shall be made using the procedures set forth in paragraph (b)
above and shall be paid to Employee as an additional Gross-Up Payment. The
Company shall be entitled to use procedures similar to those available to
Employee in paragraph (b) to determine the amount of any Overpayment (provided
that the Company shall bear all costs of the accountants as provided in
paragraph (b)). In the event of a determination that an Overpayment was made,
any such Overpayment shall be treated for all purposes as a loan to Employee
with interest at the applicable Federal rate provided for in Section 1274(d) of
the Code; provided, however, that the amount to be repaid by Employee to the
Company shall be subject to reduction to the extent necessary to put Employee in
the same after-tax position as if such Overpayment were never made.
Appendix A-4