shall be
paid by the Company.
All determinations made by the Independent Accountants
pursuant to this Section 5 shall be binding and conclusive on the Company and
the Executive.
(B)
NOTWITHSTANDING THE FOREGOING PROVISIONS OF SECTION 5(A), IF
IT SHALL BE DETERMINED THAT THE EXECUTIVE IS ENTITLED TO A GROSS-UP PAYMENT, BUT
THAT THE TOTAL PAYMENTS WOULD NOT BE SUBJECT TO THE EXCISE TAX IF THE TOTAL
PAYMENTS WERE REDUCED BY AN AMOUNT THAT IS LESS THAN FIVE PERCENT (5%) OF THE
PORTION OF THE TOTAL PAYMENTS THAT WOULD BE TREATED AS "PARACHUTE PAYMENTS"
UNDER SECTION 280G OF THE CODE, THEN THE AMOUNTS PAYABLE TO THE EXECUTIVE SHALL
BE REDUCED (BUT NOT BELOW ZERO) TO THE MAXIMUM AMOUNT THAT COULD BE PAID TO THE
EXECUTIVE WITHOUT GIVING RISE TO THE EXCISE TAX (THE "SAFE HARBOR CAP") AND NO
GROSS-UP PAYMENT SHALL BE MADE TO THE EXECUTIVE.
THE COMPANY SHALL DETERMINE
WHAT ITEMS OF COMPENSATION SHALL BE REDUCED AND SHALL PROMPTLY NOTIFY THE
EXECUTIVE OF SUCH DETERMINATIONS.
IF AN AMOUNT HAS BEEN PAID OR DISTRIBUTED TO
THE EXECUTIVE WHICH SHOULD NOT HAVE BEEN PAID OR DISTRIBUTED DUE TO THE REQUIRED
REDUCTION, THE EXECUTIVE SHALL PROMPTLY RETURN SUCH AMOUNT TO THE COMPANY
(TOGETHER WITH INTEREST AT THE RATE SET FORTH IN SECTION 1274(B)(2)(B) OF THE
CODE).
12
(C)
TO THE EXTENT APPLICABLE, THE PARTIES HERETO INTEND THAT THIS
AGREEMENT COMPLY WITH CODE SECTION 409A INCLUDING, IF APPLICABLE, COMPLIANCE
WITH ANY EXEMPTIONS FROM CODE SECTION 409A.
THE PARTIES HEREBY AGREE THAT THIS
AGREEMENT SHALL AT ALL TIMES BE CONSTRUED IN A MANNER TO COMPLY WITH (OR BE
EXEMPT FROM) CODE SECTION 409A AND THAT SHOULD EITHER PARTY REASONABLY DETERMINE
IN GOOD FAITH THAT ANY PROVISION OF THIS AGREEMENT MAY BE FOUND NOT TO BE IN
COMPLIANCE WITH CODE SECTION 409A OR MAY OTHERWISE SUBJECT THE EXECUTIVE TO TAX,
INTEREST, OR OTHER LIABILITY UNDER CODE SECTION 409A ("409A LIABILITY") OR A
RISK OF 409A LIABILITY, THE PARTIES WILL USE THEIR BEST EFFORTS TO AMEND THE
TERMS OF THIS AGREEMENT AS MAY BE NECESSARY TO AVOID ANY 409A LIABILITY OR RISK
OF 409A LIABILITY IN A MANNER THAT (I) DOES NOT MATERIALLY ALTER THE RIGHTS AND
OBLIGATIONS OF THE EXECUTIVE HEREUNDER OR OTHERWISE SUBJECT THE EXECUTIVE TO ANY
RISK OF FORFEITURE OF A NATURE OR FOR A TERM WHICH DOES NOT OTHERWISE EXIST WITH
RESPECT TO SUCH CURRENTLY CONTEMPLATED PAYMENTS OR BENEFITS, AND (II) WILL
PROVIDE THE EXECUTIVE WITH SUBSTANTIALLY THE SAME BENEFITS AND PAYMENTS HE WOULD
HAVE BEEN ENTITLED TO PURSUANT TO THIS AGREEMENT HAD CODE SECTION 409A NOT
APPLIED, BUT IN A MANNER THAT IS COMPLIANT WITH CODE SECTION 409A.
THE MANNER
IN WHICH THE IMMEDIATELY PRECEDING SENTENCE SHALL BE IMPLEMENTED SHALL BE THE
SUBJECT OF GOOD FAITH NEGOTIATIONS OF THE PARTIES.
THE PARTIES ALSO AGREE THAT
IN NO EVENT SHALL ANY PAYMENT REQUIRED TO BE MADE PURSUANT TO THIS AGREEMENT
THAT IS CONSIDERED DEFERRED COMPENSATION WITHIN THE MEANING OF CODE SECTION 409A
(AND IS NOT OTHERWISE EXEMPT FROM THE PROVISIONS THEREOF)