IMMEDIATELY PRIOR TO THE DATE OF HIS TERMINATION.
5.4
TERMINATION FOLLOWING A CHANGE IN CONTROL.
IN THE EVENT THE EXECUTIVE'S EMPLOYMENT IS TERMINATED PURSUANT TO SECTION 4.7 BY
THE COMPANY OR BY THE EXECUTIVE WITHIN 24 MONTHS FOLLOWING THE CHANGE IN CONTROL
DATE AS DEFINED IN THE ERA, THE EXECUTIVE WILL BE ENTITLED TO THE BENEFITS SET
FORTH IN THE ERA IN ACCORDANCE WITH THE TERMS OF THE ERA.
5.5
PARTICIPATION IN EXECUTIVE RETIREMENT HEALTH
BENEFIT PROGRAM.
FOLLOWING THE DATE OF THE EXECUTIVE'S TERMINATION AND, IF
APPLICABLE, THE TWENTY-FOUR (24) MONTH PERIOD REFERRED TO IN SECTION 5.3(D) OR
THE PERIOD REFERRED TO IN SECTION 4.2(A)(II) OF THE ERA, IN THE EVENT THE
EXECUTIVE ELECTS TO PARTICIPATE IN THE COMPANY'S EXECUTIVE RETIREE HEALTH
BENEFIT PROGRAM SET FORTH ON EXHIBIT A HERETO (THE "PROGRAM"), HE WILL REIMBURSE
THE COMPANY WITH RESPECT TO HIS PARTICIPATION IN THE PROGRAM AT THE LESSER OF
(A) THE ACTUAL COST TO THE COMPANY OF
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THE EMPLOYEE'S PARTICIPATION AND (B) THE RATE APPLICABLE TO FORMER EMPLOYEES OF
THE COMPANY TO ELECT COBRA HEALTH COVERAGE.
5.6
PAYMENTS SUBJECT TO SECTION 409A.
(A)
SUBJECT TO THIS SECTION 5.6, PAYMENTS OR
BENEFITS UNDER SECTION 5
SHALL BEGIN ONLY UPON THE DATE OF A "SEPARATION FROM
SERVICE" OF THE EXECUTIVE (DETERMINED AS SET FORTH BELOW) WHICH OCCURS ON OR
AFTER THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT.
THE FOLLOWING RULES SHALL
APPLY WITH RESPECT TO DISTRIBUTION OF THE PAYMENTS AND BENEFITS, IF ANY, TO BE
PROVIDED TO THE EXECUTIVE UNDER SECTION 5, AS APPLICABLE:
(I)
IT IS INTENDED THAT EACH INSTALLMENT OF
THE PAYMENTS AND BENEFITS PROVIDED UNDER SECTION 5
SHALL BE TREATED AS A
SEPARATE "PAYMENT" FOR PURPOSES OF SECTION 409A OF THE CODE AND THE GUIDANCE
ISSUED THEREUNDER ("SECTION 409A").
NEITHER THE COMPANY NOR THE EXECUTIVE SHALL
HAVE THE RIGHT TO ACCELERATE OR DEFER THE DELIVERY OF ANY SUCH PAYMENTS OR
BENEFITS EXCEPT TO THE EXTENT SPECIFICALLY PERMITTED OR REQUIRED BY
SECTION 409A.
(II)
IF, AS OF THE DATE OF THE "SEPARATION FROM
SERVICE" OF THE EXECUTIVE FROM THE COMPANY, THE EXECUTIVE IS NOT A "SPECIFIED
EMPLOYEE" (WITHIN THE MEANING OF SECTION 409A), THEN EACH INSTALLMENT OF THE
PAYMENTS AND BENEFITS SHALL BE MADE ON THE DATES AND TERMS SET FORTH IN
SECTION 5.
(III)
IF, AS OF THE DATE OF THE "SEPARATION FROM
SERVICE" OF THE EXECUTIVE FROM THE COMPANY, THE EXECUTIVE IS A "SPECIFIED
EMPLOYEE" (WITHIN THE MEANING OF SECTION 409A), THEN:
(1)
EACH INSTALLMENT OF THE PAYMENTS AND
BENEFITS DUE UNDER SECTION 5 THAT, IN ACCORDANCE WITH THE DATES AND TERMS SET
FORTH HEREIN, WILL IN ALL CIRCUMSTANCES, REGARDLESS OF WHEN THE SEPARATION FROM
SERVICE OCCURS, BE PAID WITHIN THE SHORT-
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TERM DEFERRAL PERIOD (AS HEREINAFTER DEFINED) SHALL BE TREATED AS A SHORT-TERM
DEFERRAL WITHIN THE MEANING OF TREASURY REGULATION SECTION 1.409A-1(B)(4) TO THE
MAXIMUM EXTENT PERMISSIBLE UNDER SECTION 409A.
FOR PURPOSES OF THIS AGREEMENT,
THE "SHORT-TERM DEFERRAL PERIOD" MEANS THE PERIOD ENDING ON THE LATER OF THE
15TH DAY OF THE THIRD MONTH