COMPENSATION.
IF ANY AMOUNT OR BENEFIT PROVIDED HEREUNDER
WOULD BE CONSIDERED "DEFERRED COMPENSATION" AS DEFINED UNDER CODE SECTION 409A
AND THE REGULATIONS AND GUIDANCE ISSUED THEREUNDER ("DEFERRED COMPENSATION"),
THE COMPANY RESERVES THE ABSOLUTE RIGHT (INCLUDING THE RIGHT TO DELEGATE SUCH
RIGHT) TO UNILATERALLY AMEND THIS AGREEMENT, WITHOUT THE CONSENT OF THE
EXECUTIVE, TO AVOID THE APPLICATION OF, OR TO MAINTAIN COMPLIANCE WITH, CODE
SECTION 409A.
ANY AMENDMENT BY THE COMPANY TO THIS AGREEMENT PURSUANT TO THIS
PARAGRAPH 7.7 SHALL MAINTAIN, TO THE EXTENT PRACTICABLE, THE ORIGINAL INTENT OF
THE APPLICABLE PROVISION WITHOUT VIOLATING CODE SECTION 409A.
ANY DISCRETIONARY
AUTHORITY RETAINED BY THE COMPANY PURSUANT TO THE TERMS OF THIS AGREEMENT SHALL
NOT BE APPLICABLE TO ANY AMOUNT OR BENEFIT WHICH IS DETERMINED TO CONSTITUTE
DEFERRED COMPENSATION, IF SUCH DISCRETIONARY AUTHORITY WOULD CONTRAVENE CODE
SECTION 409A.
IN ADDITION, NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, IF AT THE TIME OF A TERMINATION OF EMPLOYMENT EXECUTIVE IS A
"SPECIFIED EMPLOYEE" AS DEFINED IN CODE SECTION 409A, AND THE REGULATIONS AND
GUIDANCE THEREUNDER IN EFFECT AT THE TIME OF SUCH TERMINATION, AND THEN ONLY AS
AND TO THE EXTENT REQUIRED BY SUCH PROVISIONS, THE DATE OF PAYMENT OF ANY
PAYMENTS OTHERWISE PROVIDED HEREUNDER SHALL BE DELAYED FOR A PERIOD OF UP TO SIX
(6) MONTHS FOLLOWING THE DATE OF TERMINATION.
7.8.
EMPLOYMENT STATUS.
NOTHING HEREIN CONTAINED SHALL BE DEEMED TO
CREATE AN EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE PROVIDING
FOR THE EMPLOYMENT OF THE EXECUTIVE BY EITHER THE COMPANY OR ANY OF ITS
SUBSIDIARIES FOR ANY FIXED PERIOD OF TIME.
THE EXECUTIVE'S EMPLOYMENT IS
TERMINABLE AT WILL BY THE COMPANY, OR ONE OF ITS SUBSIDIARIES, OR THE EXECUTIVE
AND EACH SHALL HAVE THE RIGHT TO TERMINATE THE EXECUTIVE'S EMPLOYMENT AT ANY
TIME, WITH OR WITHOUT CAUSE, SUBJECT TO THE COMPANY'S OBLIGATION TO PROVIDE
SEVERANCE BENEFITS AS REQUIRED HEREUNDER.
In no event shall the Executive be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement, nor shall the amount of any
payment hereunder be reduced by any compensation earned by the Executive as a
result of employment by another employer, other than as provided in Paragraph
2.3(d) herein.
7.9.
ENTIRE AGREEMENT.
THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES
ALL PRIOR DISCUSSION, NEGOTIATIONS, AND AGREEMENTS CONCERNING THE SUBJECT MATTER
HEREOF, INCLUDING, BUT NOT LIMITED TO, THE PRIOR AGREEMENT AND ANY PRIOR
SEVERANCE AGREEMENT MADE BETWEEN THE EXECUTIVE AND THE COMPANY.
7.10.
TAX WITHHOLDING.
THE COMPANY SHALL WITHHOLD FROM ANY AMOUNTS
PAYABLE UNDER THIS AGREEMENT ALL FEDERAL, STATE, CITY, OR OTHER TAXES AS LEGALLY
REQUIRED TO BE WITHHELD.
10
7.11.
WAIVER OF RIGHTS.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE
EXECUTIVE'S ACCEPTANCE OF SEVERANCE BENEFITS, THE GROSS-UP PAYMENT (IF
APPLICABLE), AND ANY OTHER PAYMENTS REQUIRED HEREUNDER SHALL BE DEEMED TO BE A
WAIVER OF ALL RIGHTS AND CLAIMS OF THE EXECUTIVE AGAINST THE