AGREES THAT THE COMPANY
SHALL NOT BE REQUIRED TO OBTAIN, FURNISH, OR POST ANY BOND OR SIMILAR INSTRUMENT
IN CONNECTION WITH OR AS A CONDITION TO OBTAINING ANY REMEDY REFERRED TO IN THIS
SECTION, AND EMPLOYEE IRREVOCABLY WAIVES ANY RIGHT HE MAY HAVE TO REQUIRE THE
OBTAINING, FURNISHING, OR POSTING OF ANY SUCH BOND OR SIMILAR INSTRUMENT.
IN
THE EVENT THAT EITHER PARTY SEEKS INJUNCTIVE RELIEF, THE PREVAILING PARTY SHALL
BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS' FEES AND COSTS.
19.5
Administrative Relief.
EMPLOYEE UNDERSTANDS THAT THIS AGREEMENT
DOES NOT PROHIBIT HIM FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE,
OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT AGENCY THAT IS AUTHORIZED TO
ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING, BUT NOT LIMITED TO
THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, OR THE STATE BOARD OF WORKERS'
COMPENSATION.
THIS AGREEMENT DOES, HOWEVER, PRECLUDE EMPLOYEE FROM PURSUING
COURT ACTION REGARDING ANY SUCH CLAIM, EXCEPT AS PERMITTED BY LAW
19.6
Voluntary Nature of Agreement. EMPLOYEE ACKNOWLEDGES AND AGREES
THAT HE IS EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE
INFLUENCE BY THE COMPANY OR ANYONE ELSE.
EMPLOYEE FURTHER ACKNOWLEDGES AND
AGREES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THAT HE HAS ASKED ANY
QUESTIONS NEEDED FOR HIM TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING
EFFECT OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT HE IS WAIVING
HIS RIGHT TO A JURY TRIAL.
FINALLY, EMPLOYEE AGREES THAT HE HAS BEEN PROVIDED
AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF HIS CHOICE BEFORE SIGNING
THIS AGREEMENT."
9.
A new section, Section 20, shall be added to the Employment
Agreement, which shall read in its entirety as follows, effective as of the
Effective Date of this Amendment:
"20.
Section 409A.
20.1
Notwithstanding anything to the contrary in this Agreement, no
severance payment or benefits to be paid or provided to EMPLOYEE, if any
pursuant to this Agreement that, when considered together with any other
severance payments or separation benefits, are considered deferred compensation
under Section 409A of the Internal Revenue Code of 1986, as amended and any
regulations thereunder ("Section 409A") (together, the "Deferred Payments") will
be paid or otherwise provided until EMPLOYEE has a "separation from service"
within the meaning of Section 409A.
Similarly, no severance payable to
EMPLOYEE, if any, pursuant to this Agreement that otherwise would be exempt from
Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be
payable until EMPLOYEE has a "separation from service" within the meaning of
Section 409A.
20.2
Any severance payments or benefits under this Agreement that
would be considered Deferred Payments will be paid on, or in the case of
installments, will not commence until, the thirtieth (30th) day following
EMPLOYEE'S separation from service or, if later, such time as required by
Section 20.3 below.
Except as required by Section 20.3 below, any installment
payments that would have been made to EMPLOYEE during the thirty (30) day period
immediately following EMPLOYEE'S separation from service but for the preceding
sentence will