Excise Taxes. Shall have the meaning set forth in Section 4 below. -2- (h) "Good Reason" shall mean the occurrence of one or more of the following events without Executive's prior written consent (except as a result of a prior termination): (i) any material change in Executive's status, title, authorities or responsibilities (including reporting responsibilities) which represents a demotion from Executive's status, title, position or responsibilities (including reporting responsibilities) prior
... to the Change of Control; the assignment to Executive of any duties or work responsibilities which are materially inconsistent with Executive's status, title, position or work responsibilities prior to the Change of Control, or which are materially inconsistent with the status, title, position or work responsibilities of a similarly situated senior officer; or any removal of Executive from, or failure to appoint, elect, reappoint or reelect Executive to, any of such positions, except in the event of Executive's death or Disability; (ii) any decrease in Executive's annual Base Salary or target annual incentive award opportunity; (iii) the reassignment of Executive to a location more than thirty (30) miles from Executive's then-current work location; (iv) the failure by the Company to continue in effect any incentive, bonus or other compensation plan in which Executive participates, unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to the failure to continue such plan, or the failure by the Company to continue Executive's participation therein, or any action by the Company which would directly or indirectly materially reduce his participation therein or reward opportunities thereunder; provided, however, that Executive continues to meet substantially all eligibility requirements thereof; (v) the failure by the Company to continue in effect any employee benefit plan (including any medical, hospitalization, life insurance, disability or other group benefit plan in which Executive participates), or any material fringe benefit or perquisite enjoyed by Executive unless an equitable arrangement (embodied in an ongoing substitute or alternative plan) has been made with respect to the failure to continue such plan, or the failure by the Company to continue Executive's participation therein, or any action by the Company which would directly or indirectly materially reduce Executive's participation therein or reward opportunities thereunder, or the failure by the Company to provide Executive with the benefits to which Executive is entitled as an employee of the Company; provided, however, that Executive continues to meet substantially all eligibility requirements thereof, (vi) any purported termination of Executive's employment for Cause which is not effected by the Company's delivering written notice to Executive of the termination for Cause which notice describes the specific acts or omissions alleged to constitute Cause; or -3- (vii) the failure of the Company to obtain a satisfactory agreement from any successor or assignee of the Company to fully assume and agree to perform this Agreement.
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Excise Taxes. The Company shall pay to Executive (on or before the date on which the Company is required to withhold such Excise Taxes, provided, however, that this payment shall be made not later than December 31 of the taxable year following the Executive's taxable year when such Excise Taxes are paid), (i) an additional amount equal to all Excise Taxes then due and payable, and (ii) the amount necessary to defray Executive's increased (federal, state, and local)
... tax liability arising due to payment of the amount specified in Section 3 which shall include any costs and expenses, including penalties and interest incurred by Executive in connection with any audit, proceedings, etc. related to the payment of such Excise Taxes or this payment. For purposes of calculating the amount payable to Executive under Section 3, the federal and state income tax rates used shall be the highest marginal federal and state rates applicable to ordinary income in Executive's state of residence, taking into account any federal income tax deductions or credits available to Executive for state income taxes. The Company shall cause its independent auditors to calculate such amount and provide Executive a copy of such calculation at least ten days prior to the date specified above for payment of such amount. It is the intent of the Parties that this Section 3 shall place Executive in the same net after-tax position Executive would have been in had no payment been subject to an Excise Tax, and, notwithstanding anything to the contrary, it shall be construed to effectuate said result.
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