OR THE BOARD BE REFORMED TO COMPLY WITH THE
REQUIREMENTS OF SECTION 423.
THIS SECTION SHALL TAKE PRECEDENCE OVER ALL OTHER
PROVISIONS IN THE PLAN.
C.
THE CORPORATION INTENDS THAT NO PAYMENTS UNDER THIS PLAN WILL BE
SUBJECT TO THE TAX IMPOSED BY CODE SECTION 409A.
IF THE PLAN ADMINISTRATOR
GRANTS AN OPTION OR PURCHASE RIGHT SUBJECT TO U.S. TAXATION (1) THE PLAN
ADMINISTRATOR MAY NOT MODIFY OR AMEND THE OPTION OR PURCHASE RIGHT TO THE EXTENT
THAT THE MODIFICATION OR AMENDMENT ADDS A FEATURE THAT IS NOT EXEMPT FROM CODE
SECTION 409A OR OTHERWISE ALLOWS FOR DEFERRED COMPENSATION WITHIN THE MEANING OF
CODE SECTION 409A, AND (2) ANY ADJUSTMENT PURSUANT TO SECTION III.B OF THIS PLAN
WILL BE DONE IN A MANNER CONSISTENT WITH CODE SECTION 409A AND TREASURY
REGULATIONS SECTION 1.409A-1 ET. SEQ. TO THE EXTENT CODE SECTION 409A APPLIES TO
SUCH ADJUSTMENT.
THE ADMINISTRATOR WILL INTERPRET AND ADMINISTER THE PLAN IN A
MANNER THAT AVOIDS THE IMPOSITION OF ANY INCREASE IN TAX UNDER CODE
SECTION 409A(A)(1)(B), AND ANY AMBIGUITIES HEREIN WILL BE INTERPRETED TO SATISFY
THE REQUIREMENTS OF CODE SECTION 409A OR ANY EXEMPTION THERETO.
D.
NOTHING IN THE PLAN SHALL CONFER UPON THE PARTICIPANT ANY RIGHT TO
CONTINUE IN THE EMPLOY OF THE CORPORATION OR ANY CORPORATE AFFILIATE FOR ANY
PERIOD OF SPECIFIC DURATION OR INTERFERE WITH OR OTHERWISE RESTRICT IN ANY WAY
THE RIGHTS OF THE CORPORATION (OR ANY CORPORATE AFFILIATE EMPLOYING SUCH PERSON)
OR OF THE PARTICIPANT, WHICH RIGHTS ARE HEREBY EXPRESSLY
7
RESERVED BY EACH, TO TERMINATE SUCH PERSON'S EMPLOYMENT AT ANY TIME FOR ANY
REASON, WITH OR WITHOUT CAUSE.
E.
THE PROVISIONS OF THE PLAN SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE WITHOUT RESORT TO THAT STATE'S CONFLICT-OF-LAWS RULES.
8
APPENDIX
The following definitions shall be in effect under the Plan:
A.
BOARD SHALL MEAN THE CORPORATION'S BOARD OF DIRECTORS.
B.
CASH EARNINGS SHALL MEAN (I) THE REGULAR BASE SALARY PAID TO A
PARTICIPANT BY ONE OR MORE PARTICIPATING COMPANIES DURING SUCH INDIVIDUAL'S
PERIOD OF PARTICIPATION IN ONE OR MORE OFFERING PERIODS UNDER THE PLAN PLUS
(II) ALL OVERTIME PAYMENTS, BONUSES, COMMISSIONS, PROFIT-SHARING DISTRIBUTIONS
OR OTHER INCENTIVE-TYPE PAYMENTS RECEIVED DURING SUCH PERIOD.
SUCH CASH
EARNINGS SHALL BE CALCULATED BEFORE DEDUCTION OF (A) ANY INCOME OR EMPLOYMENT
TAX WITHHOLDINGS OR (B) ANY CONTRIBUTIONS MADE BY THE PARTICIPANT TO ANY CODE
SECTION 401(K) SALARY DEFERRAL PLAN OR ANY CODE SECTION 125 CAFETERIA BENEFIT
PROGRAM NOW OR HEREAFTER ESTABLISHED BY THE CORPORATION OR ANY CORPORATE
AFFILIATE.
HOWEVER, CASH EARNINGS SHALL NOT INCLUDE ANY CONTRIBUTIONS MADE BY
THE CORPORATION OR ANY CORPORATE AFFILIATE ON THE PARTICIPANT'S BEHALF TO ANY
EMPLOYEE BENEFIT OR WELFARE PLAN NOW OR HEREAFTER ESTABLISHED (OTHER THAN CODE
SECTION 401(K) OR CODE SECTION 125 CONTRIBUTIONS DEDUCTED FROM SUCH CASH
EARNINGS).
C.
CHANGE IN CONTROL SHALL MEAN A CHANGE IN OWNERSHIP OF THE
CORPORATION PURSUANT TO ANY OF THE FOLLOWING TRANSACTIONS:
(I)
A MERGER, CONSOLIDATION OR OTHER REORGANIZATION APPROVED BY THE
CORPORATION'S STOCKHOLDERS, UNLESS SECURITIES REPRESENTING MORE THAN