EQUITY-BASED COMPENSATION AWARDS GRANTED TO EXECUTIVE BY COMPANY UNDER AN EQUITY
PLAN THAT VESTED PRIOR TO SUCH TERMINATION OF EMPLOYMENT WILL BE GOVERNED BY THE
TERMS OF SUCH AWARDS AND SUCH EQUITY PLAN.
ANY EQUITY-BASED COMPENSATION AWARDS
GRANTED TO EXECUTIVE BY COMPANY UNDER AN EQUITY PLAN THAT ARE UNVESTED ON
TERMINATION OF EMPLOYMENT WILL EXPIRE, UNLESS OTHERWISE PROVIDED IN SUCH AWARDS
OR SUCH EQUITY PLAN.
FOLLOWING HIS OR HER TERMINATION OF EMPLOYMENT, COMPANY
WILL NOT GRANT EXECUTIVE ANY EQUITY-BASED COMPENSATION AWARDS.
(E)
401(K) PLAN.
THE TERMS OF THE 401(K) PLAN
WILL GOVERN EXECUTIVE'S ACCOUNT BALANCE, IF ANY, UNDER SUCH 401(K) PLAN.
1.7
CODE SECTION 409A.
(A)
IT IS THE INTENTION OF COMPANY AND
EXECUTIVE THAT THE PROVISIONS OF THIS AGREEMENT COMPLY WITH SECTION 409A OF THE
CODE AND THE RULES, REGULATIONS AND OTHER AUTHORITIES PROMULGATED THEREUNDER
(INCLUDING THE TRANSITION RULES THEREOF) (COLLECTIVELY, "409A"), AND ALL
PROVISIONS OF THIS AGREEMENT WILL BE CONSTRUED AND INTERPRETED IN A MANNER
CONSISTENT WITH 409A.
(B)
TO THE EXTENT EXECUTIVE IS A "SPECIFIED
EMPLOYEE," AS DEFINED IN SECTION 409A(A)(2)(B)(I) OF THE CODE AND AS DETERMINED
IN GOOD FAITH BY COMPANY, NOTWITHSTANDING THE TIMING OF PAYMENT PROVIDED IN ANY
OTHER SECTION OF THIS AGREEMENT, NO PAYMENT, DISTRIBUTION OR BENEFIT UNDER THIS
AGREEMENT THAT CONSTITUTES A DISTRIBUTION OF DEFERRED COMPENSATION (WITHIN THE
MEANING OF TREASURY REGULATION SECTION 1.409A-1(B)) UPON SEPARATION FROM SERVICE
(WITHIN THE MEANING OF TREASURY REGULATION SECTION 1.409A-1(H)), AFTER TAKING
INTO ACCOUNT ALL AVAILABLE EXEMPTIONS THAT WOULD OTHERWISE BE PAYABLE DURING THE
SIX-MONTH PERIOD AFTER SEPARATION FROM SERVICE WILL BE MADE DURING SUCH
SIX-MONTH PERIOD, AND ANY SUCH PAYMENT, DISTRIBUTION OR BENEFIT WILL INSTEAD BE
PAID ON THE FIRST BUSINESS DAY AFTER SUCH SIX-MONTH PERIOD.
(C)
IN THE EVENT THAT COMPANY DETERMINES THAT
ANY PROVISION OF THIS AGREEMENT DOES NOT COMPLY WITH 409A, COMPANY WILL BE
ENTITLED (BUT WILL HAVE NO OBLIGATION) WITHOUT EXECUTIVE'S CONSENT, TO AMEND OR
MODIFY SUCH PROVISION TO COMPLY WITH 409A; PROVIDED, HOWEVER, THAT SUCH
AMENDMENT OR MODIFICATION WILL, TO THE GREATEST EXTENT COMMERCIALLY PRACTICABLE,
MAINTAIN THE ECONOMIC VALUE TO EXECUTIVE OF SUCH PROVISION.
(D)
FOR PURPOSES OF 409A, EACH INSTALLMENT OF
SEVERANCE PAY UNDER SECTIONS 1.1(A), 1.3(A) AND 1.4(A) WILL BE DEEMED TO BE A
SEPARATE PAYMENT AS PERMITTED UNDER TREASURY REGULATION
SECTION 1.409A-2(B)(2)(III).
(E)
EXCEPT AS PERMITTED BY SECTION 409A, THE
CONTINUED BENEFITS PROVIDED TO EXECUTIVE PURSUANT TO THIS AGREEMENT DURING ANY
CALENDAR YEAR WILL NOT AFFECT THE CONTINUED BENEFITS PROVIDED TO EXECUTIVE IN
ANY OTHER CALENDAR YEAR, AND THE AMOUNT OF ANY COSTS OF PURCHASING BENEFITS
REIMBURSED PURSUANT TO THIS AGREEMENT SHALL BE PAID TO EXECUTIVE NO LATER THAN
THE LAST DAY OF THE CALENDAR YEAR FOLLOWING THE CALENDAR YEAR IN WHICH SUCH
COSTS ARE INCURRED BY EXECUTIVE.
(F)
NEITHER EXECUTIVE NOR ANY CREDITOR OR
BENEFICIARY OF EXECUTIVE WILL HAVE THE RIGHT TO SUBJECT ANY DEFERRED
COMPENSATION (WITHIN THE MEANING OF SECTION 409A) PAYABLE UNDER THIS AGREEMENT
OR UNDER ANY OTHER PLAN, POLICY, ARRANGEMENT OR AGREEMENT OF
7
OR WITH COMPANY OR ANY AFFILIATE THEREOF (THIS AGREEMENT