TO PAY FEDERAL INCOME TAXES AT THE
HIGHEST MARGINAL RATE OF FEDERAL INCOME TAXATION APPLICABLE TO INDIVIDUALS FOR
THE CALENDAR YEAR IN WHICH THE DETERMINATION IS TO BE MADE, AND STATE AND LOCAL
INCOME TAXES AT THE HIGHEST MARGINAL RATES OF INDIVIDUAL TAXATION IN THE STATE
AND LOCALITY OF EXECUTIVE'S RESIDENCE ON THE TERMINATION DATE, NET OF THE
MAXIMUM REDUCTION IN FEDERAL INCOME TAXES WHICH COULD BE OBTAINED FROM DEDUCTION
OF
20
SUCH STATE AND LOCAL TAXES.
ANY DETERMINATION BY THE ACCOUNTING FIRM SHALL BE
BINDING UPON THE EMPLOYER AND THE EXECUTIVE.
20.
SECTION 409A.
(A)
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IF AT THE TIME
OF EXECUTIVE'S SEPARATION FROM SERVICE WITHIN THE MEANING OF SECTION 409A OF THE
CODE, THE EMPLOYER DETERMINES THAT EXECUTIVE IS A "SPECIFIED EMPLOYEE" WITHIN
THE MEANING OF SECTION 409A(A)(2)(B)(I) OF THE CODE, THEN TO THE EXTENT ANY
PAYMENT OR BENEFIT THAT EXECUTIVE BECOMES ENTITLED TO UNDER THIS AGREEMENT ON
ACCOUNT OF EXECUTIVE'S SEPARATION FROM SERVICE WOULD BE CONSIDERED DEFERRED
COMPENSATION SUBJECT TO THE 20 PERCENT ADDITIONAL TAX IMPOSED PURSUANT TO
SECTION 409A(A) OF THE CODE AS A RESULT OF THE APPLICATION OF SECTION
409A(A)(2)(B)(I) OF THE CODE, SUCH PAYMENT SHALL NOT BE PAYABLE AND SUCH BENEFIT
SHALL NOT BE PROVIDED UNTIL THE DATE THAT IS THE EARLIER OF (A) SIX (6) MONTHS
AND ONE DAY AFTER EXECUTIVE'S SEPARATION FROM SERVICE, OR (B) EXECUTIVE'S
DEATH.
IF ANY SUCH DELAYED CASH PAYMENT IS OTHERWISE PAYABLE ON AN INSTALLMENT
BASIS, THE FIRST PAYMENT SHALL INCLUDE A CATCH-UP PAYMENT COVERING AMOUNTS THAT
WOULD OTHERWISE HAVE BEEN PAID DURING THE SIX-MONTH PERIOD BUT FOR THE
APPLICATION OF THIS PROVISION, AND THE BALANCE OF THE INSTALLMENTS SHALL BE
PAYABLE IN ACCORDANCE WITH THEIR ORIGINAL SCHEDULE.
ANY PAYMENTS DELAYED
PURSUANT TO THIS SECTION 20(A) SHALL BEAR INTEREST DURING THE PERIOD OF SUCH
DELAY AT THE SIMPLE RATE OF 5% PER ANNUM.
(B)
THE PARTIES INTEND THAT THIS AGREEMENT WILL BE ADMINISTERED IN ACCORDANCE
WITH SECTION 409A OF THE CODE.
TO THE EXTENT THAT ANY PROVISION OF THIS
AGREEMENT IS AMBIGUOUS AS TO ITS COMPLIANCE WITH SECTION 409A OF THE CODE, THE
PROVISION SHALL BE READ IN SUCH A MANNER SO THAT ALL PAYMENTS HEREUNDER COMPLY
WITH SECTION 409A OF THE CODE.
THE PARTIES AGREE THAT THIS AGREEMENT MAY BE
AMENDED, AS REASONABLY REQUESTED BY EITHER PARTY, AND AS MAY BE NECESSARY TO
FULLY COMPLY WITH SECTION 409A OF THE CODE AND ALL RELATED RULES AND REGULATIONS
IN ORDER TO PRESERVE THE PAYMENTS AND BENEFITS PROVIDED HEREUNDER WITHOUT
ADDITIONAL COST TO EITHER PARTY.
(C)
TO THE EXTENT THAT ANY PAYMENT OR BENEFIT DESCRIBED IN THIS AGREEMENT
CONSTITUTES "NON-QUALIFIED DEFERRED COMPENSATION" UNDER SECTION 409A OF THE
CODE, AND TO THE EXTENT THAT SUCH PAYMENT OR BENEFIT IS PAYABLE UPON THE
EXECUTIVE'S TERMINATION OF EMPLOYMENT, THEN SUCH PAYMENTS OR BENEFITS SHALL BE
PAYABLE ONLY UPON THE EXECUTIVE'S "SEPARATION FROM SERVICE."
THE DETERMINATION
OF WHETHER AND WHEN A SEPARATION FROM SERVICE HAS OCCURRED SHALL BE MADE IN
ACCORDANCE WITH THE PRESUMPTIONS SET