OR IN EQUITY,
OBTAIN AN INJUNCTION AGAINST EXECUTIVE FROM ANY COURT HAVING JURISDICTION OVER
THE MATTER, RESTRAINING ANY FURTHER VIOLATION OF THIS AGREEMENT BY THE
EXECUTIVE.
(E)
SURVIVAL.
THE PROVISIONS SET FORTH IN THIS SECTION WILL, AS
NOTED, SURVIVE TERMINATION OF THIS AGREEMENT.
10
8.
INDEMNIFICATION AND INSURANCE.
THE COMPANY WILL INDEMNIFY THE
EXECUTIVE IN ACCORDANCE WITH THE COMPANY'S CERTIFICATE OF INCORPORATION AND
BYLAWS IN THE EVENT HE IS MADE OR THREATENED TO BE MADE A PARTY TO ANY ACTION,
SUIT, OR PROCEEDING, WHETHER CRIMINAL, CIVIL, ADMINISTRATIVE OR INVESTIGATIVE,
BY REASON OF THE FACT THAT HE IS OR WAS A DIRECTOR, OFFICER, OR EMPLOYEE OF THE
COMPANY AND ITS AFFILIATES, OR SERVES ANY OTHER ENTERPRISE AS A DIRECTOR,
OFFICER, OR EMPLOYEE AT THE REQUEST OF THE COMPANY.
WHILE EMPLOYED BY THE
COMPANY AND AFFILIATES AND FOR SIX YEARS THEREAFTER, THE COMPANY WILL MAINTAIN
THE EXECUTIVE AS AN INSURED PARTY ON ALL DIRECTORS' AND OFFICERS' INSURANCE
MAINTAINED BY THE COMPANY FOR THE BENEFIT OF ITS DIRECTORS AND OFFICERS ON AT
LEAST THE SAME BASIS AS ALL OTHER COVERED INDIVIDUALS WITH RESPECT TO TIME
PERIODS WHERE EXECUTIVE SERVED AS AN EMPLOYEE OF THE COMPANY AND ITS AFFILIATES;
PROVIDED THAT, FOR THE AVOIDANCE OF DOUBT, THE COMPANY WILL BE ENTITLED TO
SATISFY ITS OBLIGATIONS PURSUANT TO THIS SENTENCE THROUGH PURCHASE OF A "TAIL
POLICY" THAT INCLUDES EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND ITS
SUBSIDIARIES.
9.
SECTION 409A.
PAYMENTS UNDER SECTIONS 5 AND 6 ARE INTENDED TO
QUALIFY AS SHORT-TERM DEFERRALS.
HOWEVER, IF THE COMPANY REASONABLY DETERMINES
THAT A PAYMENT UNDER PARAGRAPHS 5(D) OR 6(A) ABOVE DOES NOT QUALIFY AS A
SHORT-TERM DEFERRAL UNDER CODE SECTION 409A AND TREAS. REG. §1.409A-1(B)(4) (OR
ANY SIMILAR OR SUCCESSOR PROVISIONS), AND THE EXECUTIVE IS A SPECIFIED EMPLOYEE
AS OF THE DATE OF TERMINATION, DISTRIBUTIONS TO THE EXECUTIVE MAY NOT BE MADE
BEFORE THE DATE THAT IS SIX MONTHS AFTER THE DATE OF THE DATE OF TERMINATION OR,
IF EARLIER, THE DATE OF THE EXECUTIVE'S DEATH (THE "SIX-MONTH DELAY RULE").
PAYMENTS TO WHICH THE EXECUTIVE WOULD OTHERWISE BE ENTITLED DURING THE FIRST SIX
MONTHS FOLLOWING THE DATE OF TERMINATION (THE "SIX-MONTH DELAY") WILL BE
ACCUMULATED AND PAID ON THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE DATE OF
TERMINATION.
NOTWITHSTANDING THE SIX-MONTH DELAY RULE SET FORTH IN SECTION 9:
(a)
To the maximum extent permitted under Code Section 409A and Treas.
Reg. §1.409A-1(b)(9)(iii) (or any similar or successor provisions), during the
first month of the Six-Month Delay, the Company will pay the Executive an amount
equal to the lesser of (i) the total lump sum severance provided under
paragraphs 5(d) or 6(a) above, or (ii) two times the lesser of (A) the maximum
amount that may be taken into account under a qualified plan pursuant to Code
Section 401(a)(17) for the year in which the date of termination occurs, and (B)
the sum of the Executive's annualized compensation based upon the annual rate of
pay for services provided to the Company for the taxable year of