AN INDIVIDUAL, A CORPORATION,
A LIMITED LIABILITY COMPANY, AN ASSOCIATION, A PARTNERSHIP, AN ESTATE, A TRUST
OR ANY OTHER ENTITY OR ORGANIZATION, OTHER THAN THE COMPANY.
3.
CONFIDENTIAL INFORMATION AND RESTRICTED
ACTIVITIES. THE EXECUTIVE WILL BE SUBJECT TO THE TERMS AND CONDITIONS RELATING
TO CONFIDENTIAL INFORMATION, NON-SOLICITATION AND NON-COMPETITION SET FORTH IN
EXHIBIT A, WHICH IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
3
4.
AMENDMENT AND TERMINATION.
THIS
AGREEMENT MAY BE AMENDED OR TERMINATED ONLY WITH THE MUTUAL WRITTEN CONSENT OF
THE COMPANY AND THE EXECUTIVE.
IN THE EVENT OF ANY AMENDMENTS INVOLVING FURTHER
DEFERRALS OF THE DEFERRED COMPENSATION, EACH INSTALLMENT PAYMENT CALLED FOR
UNDER SECTION 1 ABOVE SHALL BE TREATED, TO THE EXTENT PERMISSIBLE UNDER THE
CODE, AS A SEPARATE PAYMENT FOR PURPOSES OF SECTION 409A OF THE CODE.
5.
SECTION 409A; NO GUARANTEE OF ANY TAX
CONSEQUENCES.
THE PARTIES HERETO INTEND THAT THIS AGREEMENT COMPLY WITH THE
REQUIREMENTS OF SECTION 409A OF THE CODE AND RELATED REGULATIONS AND TREASURY
PRONOUNCEMENTS ("SECTION 409A") AND THIS AGREEMENT SHALL BE INTERPRETED TO
COMPLY WITH SECTION 409A.
IF ANY PROVISION PROVIDED HEREIN RESULTS IN THE
IMPOSITION OF AN ADDITIONAL TAX UNDER THE PROVISIONS OF SECTION 409A, THE
EXECUTIVE AND THE COMPANY AGREE THAT ANY SUCH PROVISION WILL BE REFORMED TO
AVOID IMPOSITION OF ANY SUCH ADDITIONAL TAX IN THE MANNER THAT THE EXECUTIVE AND
THE COMPANY MUTUALLY AGREE IS APPROPRIATE TO COMPLY WITH SECTION 409A.
NOTWITHSTANDING THE FOREGOING, THE COMPANY MAKES NO GUARANTEE OF ANY TAX
CONSEQUENCES UNDER ANY SECTION OF THE CODE OR STATE TAX LAWS, INCLUDING, WITHOUT
LIMITATION, SECTION 409A OF THE CODE.
6.
DELAY IN PAYMENTS.
NOTWITHSTANDING ANY
OTHER PROVISION WITH RESPECT TO THE TIMING OF PAYMENTS HEREUNDER, IF, AT THE
TIME OF THE EXECUTIVE'S TERMINATION, THE EXECUTIVE IS DEEMED TO BE A "SPECIFIED
EMPLOYEE" (WITHIN THE MEANING OF SECTION 409A OF THE CODE, AND ANY SUCCESSOR
STATUTE, REGULATION AND GUIDANCE THERETO) OF THE COMPANY, THEN ONLY TO THE
EXTENT NECESSARY TO COMPLY WITH THE REQUIREMENTS OF SECTION 409A OF THE CODE,
ANY PAYMENTS TO WHICH THE EXECUTIVE MAY BECOME ENTITLED HEREUNDER AS A RESULT OF
THE EXECUTIVE'S "SEPARATION FROM SERVICE" AS DEFINED UNDER SECTION 409A OF THE
CODE WILL BE WITHHELD UNTIL THE FIRST BUSINESS DAY OF THE SEVENTH MONTH
FOLLOWING THE DATE OF TERMINATION, AT WHICH TIME THE EXECUTIVE SHALL BE PAID AN
AGGREGATE AMOUNT EQUAL TO SIX (6) MONTHS OF PAYMENTS OTHERWISE DUE TO THE
EXECUTIVE UNDER THE TERMS OF SECTION 1 ABOVE. AFTER THE FIRST BUSINESS DAY OF
THE SEVENTH MONTH FOLLOWING THE DATE OF TERMINATION AND CONTINUING EACH MONTH
THEREAFTER, THE EXECUTIVE SHALL BE PAID THE REGULAR PAYMENTS OTHERWISE DUE TO
THE EXECUTIVE IN ACCORDANCE WITH THE TERMS OF SECTION 1 ABOVE.
7.
UNSECURED PROMISE TO PAY.
THIS PLAN
CONSTITUTES AN UNFUNDED AND NON-QUALIFIED DEFERRED COMPENSATION ARRANGEMENT
BETWEEN THE COMPANY AND THE EXECUTIVE. NEITHER THE EXECUTIVE NOR ANY OTHER
PERSON SHALL HAVE ANY INTEREST IN ANY SPECIFIC ASSET OR ASSETS OF THE COMPANY BY
REASON OF ANY OBLIGATIONS HEREUNDER NOR ANY RIGHTS TO