UNLESS SUCH WAIVER, MODIFICATION OR DISCHARGE IS AGREED TO IN A
WRITING SIGNED BY THE EXECUTIVE AND AN OFFICER OF THE COMPANY (OTHER THAN THE
EXECUTIVE) DULY AUTHORIZED BY THE BOARD TO EXECUTE SUCH AMENDMENT, WAIVER OR
DISCHARGE.
NO WAIVER BY EITHER PARTY AT ANY TIME OF ANY BREACH OF THE OTHER
PARTY OF, OR COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT TO BE
PERFORMED BY SUCH OTHER PARTY SHALL BE DEEMED A WAIVER OF SIMILAR OR DISSIMILAR
PROVISIONS OR CONDITIONS AT THE SAME OR AT ANY PRIOR OR SUBSEQUENT TIME.
(D)
COMPLIANCE WITH SECTION 409A OF THE CODE.
(I)
IT IS INTENDED THAT THIS AGREEMENT BE INTERPRETED AND ADMINISTERED
TO PREVENT TAXATION UNDER SECTION 409A OF THE CODE.
NOTWITHSTANDING ANY
PROVISION TO THE CONTRARY IN THIS AGREEMENT, NO PAYMENTS OR BENEFITS TO WHICH
THE EXECUTIVE BECOMES ENTITLED UNDER THIS AGREEMENT SHALL BE MADE OR PAID TO THE
EXECUTIVE PRIOR TO THE EARLIER OF (I) THE EXPIRATION OF THE SIX (6)-MONTH PERIOD
MEASURED FROM THE DATE OF HIS "SEPARATION FROM SERVICE" WITH THE COMPANY (AS
SUCH TERM IS DEFINED IN SECTION 409A-1(H) OF THE 409A REGULATIONS) OR (II) THE
DATE OF THE EXECUTIVE'S DEATH, IF THE EXECUTIVE IS DEEMED AT THE TIME OF SUCH
SEPARATION FROM SERVICE A "KEY EMPLOYEE" WITHIN THE MEANING OF THAT TERM UNDER
CODE SECTION 416(I) AND THE COMPANY'S STOCK IS PUBLICLY TRADED ON AN ESTABLISHED
SECURITIES MARKET AND SUCH DELAYED COMMENCEMENT IS OTHERWISE REQUIRED IN ORDER
TO AVOID A PROHIBITED DISTRIBUTION UNDER CODE SECTION 409A(A)(2).
UPON THE
EXPIRATION OF THE APPLICABLE CODE SECTION 409A(A)(2) DEFERRAL PERIOD, ALL
PAYMENTS DEFERRED PURSUANT TO THIS SUBSECTION 10(D) SHALL BE PAID IN A LUMP SUM
TO THE EXECUTIVE, AND ANY REMAINING PAYMENTS DUE UNDER THIS AGREEMENT SHALL BE
PAID IN ACCORDANCE WITH THE NORMAL
PAYMENT DATES SPECIFIED FOR THEM HEREIN.
THE EXECUTIVE SHALL BE ENTITLED TO INTEREST ON ANY DEFERRED BENEFITS AND
PAYMENTS DURING THE DEFERRAL PERIOD, WITH SUCH INTEREST TO ACCRUE AT THE PRIME
RATE IN EFFECT FROM TIME TO TIME DURING THAT PERIOD AND TO BE PAID IN A LUMP SUM
ON THE FIRST BUSINESS DAY FOLLOWING THE END OF THE DEFERRAL PERIOD.
(II)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE
CONTRARY, THE COMPANY SHALL MODIFY THE TIME AND/OR FORM OF PAYMENT UNDER ANY
"APPLICABLE ARRANGEMENT" (AS DEFINED BELOW) IF AND TO THE EXTENT THAT THE
COMPANY OR THE EXECUTIVE DETERMINES SUCH MODIFICATION TO BE NECESSARY OR
ADVISABLE TO AVOID THE IMPOSITION ON THE EXECUTIVE OF THE ADDITIONAL TAXES
IMPOSED ON CERTAIN NON-QUALIFIED DEFERRED COMPENSATION ARRANGEMENTS PURSUANT TO
SECTION 409A OF THE CODE.
IN MAKING ANY SUCH MODIFICATION TO AN APPLICABLE
ARRANGEMENT, THE DETERMINATION BY THE COMPANY OR THE EXECUTIVE MUST BE MADE IN
GOOD FAITH, BE BASED ON ADVICE OF COUNSEL AND BE DESIGNED, IN THE COMPANY'S SOLE
JUDGMENT, TO FULFILL AS CLOSELY AS POSSIBLE THE COMPANY'S ORIGINAL COMMITMENT TO
THE EXECUTIVE UNDER THE APPLICABLE ARRANGEMENT WITHOUT REGARD TO SECTION 409A OF
THE CODE WITHOUT INCREASING THE COMPANY'S COSTS UNDER THE APPLICABLE