AND TERMS SET FORTH HEREIN, WILL IN ALL CIRCUMSTANCES,
REGARDLESS OF WHEN THE SEPARATION FROM SERVICE OCCURS, BE PAID WITHIN THE
SHORT-TERM DEFERRAL PERIOD (AS HEREINAFTER DEFINED) SHALL BE TREATED AS A
SHORT-TERM DEFERRAL WITHIN THE MEANING OF TREASURY REGULATION
SECTION 1.409A-1(B)(4) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER SECTION 409A.
FOR PURPOSES OF THIS AGREEMENT, THE "SHORT-TERM DEFERRAL PERIOD" MEANS THE
PERIOD ENDING ON THE LATER OF THE 15TH DAY OF THE THIRD MONTH FOLLOWING THE END
OF THE TAX YEAR IN WHICH YOUR SEPARATION FROM SERVICE OCCURS AND THE 15TH DAY OF
THE THIRD MONTH FOLLOWING THE END OF THE COMPANY'S TAX YEAR IN WHICH YOUR
SEPARATION FROM SERVICE OCCURS; AND
(B) EACH INSTALLMENT OF THE PAYMENTS AND BENEFITS DUE UNDER SECTION 8 THAT IS
NOT PAID WITHIN THE SHORT-TERM DEFERRAL PERIOD AND THAT WOULD, ABSENT THIS
SUBSECTION, BE PAID WITHIN THE SIX-MONTH PERIOD FOLLOWING YOUR "SEPARATION FROM
SERVICE" WITH THE COMPANY SHALL NOT BE PAID UNTIL THE DATE THAT IS SIX MONTHS
AND ONE DAY AFTER SUCH SEPARATION FROM SERVICE (OR, IF EARLIER, YOUR DEATH),
WITH ANY SUCH INSTALLMENTS THAT ARE REQUIRED TO BE DELAYED BEING ACCUMULATED
DURING THE SIX-MONTH PERIOD AND PAID IN A LUMP SUM ON THE DATE THAT IS SIX
MONTHS AND ONE DAY FOLLOWING YOUR SEPARATION FROM SERVICE AND ANY SUBSEQUENT
INSTALLMENTS, IF ANY, BEING PAID IN ACCORDANCE WITH THE DATES AND TERMS SET
FORTH HEREIN; PROVIDED, HOWEVER, THAT THE PRECEDING PROVISIONS OF THIS SENTENCE
SHALL NOT APPLY TO ANY INSTALLMENT OF PAYMENTS IF AND TO THE MAXIMUM EXTENT THAT
THAT SUCH INSTALLMENT IS DEEMED TO BE PAID UNDER A SEPARATION PAY PLAN THAT DOES
NOT PROVIDE FOR A DEFERRAL OF COMPENSATION BY REASON OF THE APPLICATION OF
TREASURY REGULATION 1.409A-1(B)(9)(III) (RELATING TO SEPARATION PAY UPON AN
INVOLUNTARY SEPARATION FROM SERVICE).
ANY INSTALLMENTS THAT QUALIFY FOR THE
EXCEPTION UNDER TREASURY REGULATION SECTION 1.409A-1(B)(9)(III) MUST BE PAID NO
LATER THAN THE LAST DAY OF THE SECOND TAXABLE YEAR OF FOLLOWING THE TAXABLE YEAR
OF IN WHICH YOUR SEPARATION FROM SERVICE OCCURS.
9.
SECTION 409A OF THE CODE.
THIS AGREEMENT IS INTENDED TO COMPLY
WITH THE PROVISIONS OF SECTION 409A AND THE AGREEMENT SHALL, TO THE EXTENT
PRACTICABLE, BE CONSTRUED IN ACCORDANCE THEREWITH.
TERMS DEFINED IN THE
AGREEMENT SHALL HAVE THE MEANINGS GIVEN SUCH TERMS UNDER SECTION 409A IF AND TO
THE EXTENT REQUIRED IN ORDER TO COMPLY WITH SECTION 409A.
NOTWITHSTANDING THE
FOREGOING, TO THE EXTENT THAT THE AGREEMENT OR ANY PAYMENT OR BENEFIT HEREUNDER
SHALL BE DEEMED NOT TO COMPLY WITH SECTION 409A, THEN NEITHER THE COMPANY, THE
BOARD OF DIRECTORS NOR ITS OR THEIR DESIGNEES OR AGENTS SHALL BE LIABLE TO YOU
OR ANY OTHER PERSON FOR ANY ACTIONS, DECISIONS OR DETERMINATIONS MADE IN GOOD
FAITH.
10.
NO MITIGATION.
THE PARTIES HERETO AGREE THAT YOU SHALL NOT BE
REQUIRED TO MITIGATE DAMAGES IN RESPECT OF ANY TERMINATION BENEFIT OR PAYMENT
DUE UNDER THIS AGREEMENT, NOR SHALL ANY SUCH BENEFIT OR PAYMENT BE OFFSET BY ANY
FUTURE COMPENSATION OR INCOME RECEIVED BY YOU FROM