BE ACCELERATED OR
DELAYED IN VIOLATION OF CODE SECTION 409A.
SPECIFICALLY, THE PARTIES AGREE THAT
(I) IF THE EXECUTIVE IS A KEY EMPLOYEE (AS DEFINED IN SECTION 416(I) OF THE CODE
WITHOUT REGARD TO PARAGRAPH (5) THEREOF), THEN (II) ANY PAYMENTS THAT ARE
CONSIDERED DEFERRED COMPENSATION UNDER CODE SECTION 409A (AND ARE NOT OTHERWISE
EXEMPT FROM THE PROVISIONS THEREOF) CANNOT BE PAID TO THE EXECUTIVE UNTIL THE
LAPSE OF SIX (6) MONTHS AFTER HIS SEPARATION FROM SERVICE, (III) ANY SUCH
PAYMENTS THAT WOULD OTHERWISE BE PAID WITHIN SIX (6) MONTHS AFTER THE
EXECUTIVE'S SEPARATION FROM SERVICE SHALL BE PAID IN LUMP SUM WITHIN TEN (10)
DAYS AFTER THE LAPSE OF SUCH SIX (6) MONTH PERIOD AND ALL OTHER PAYMENTS SHALL
BE MADE AS WOULD ORDINARILY HAVE BEEN MADE UNDER THE PROVISIONS OF THIS
AGREEMENT.
IF THE COMPANY (A) FAILS TO USE BEST EFFORTS AS DESCRIBED ABOVE OR
(B) MAKES A PAYMENT OR PROVIDES A BENEFIT TO THE EXECUTIVE THAT DOES NOT
MATERIALLY COMPLY WITH THE TERMS OF THIS AGREEMENT, AS IT MAY BE AMENDED AND IN
EFFECT FROM TIME TO TIME, AND AS A RESULT THE EXECUTIVE INCURS 409A LIABILITY,
THE COMPANY WILL PROMPTLY PAY THE EXECUTIVE AN ADDITIONAL AMOUNT (THE "409A
REIMBURSEMENT AMOUNT") EQUAL TO THE AMOUNT OF ANY SUCH 409A LIABILITY PLUS THE
AMOUNT OF ANY TAX, INTEREST AND OTHER LIABILITY OR EXPENSE INCURRED BY THE
EXECUTIVE WITH RESPECT TO THE 409A REIMBURSEMENT AMOUNT SUCH THAT THE EXECUTIVE
WILL BE IN THE SAME POSITION AS IF NO 409A LIABILITY HAD BEEN INCURRED.
6.
WITHHOLDING.
THE COMPANY SHALL WITHHOLD FROM ANY AMOUNT
PAYABLE TO THE EXECUTIVE (OR TO HIS BENEFICIARY OR ESTATE OR ANY OTHER PERSON)
HEREUNDER ALL FEDERAL, STATE, LOCAL, FOREIGN OR OTHER TAXES THAT THE COMPANY MAY
REASONABLY DETERMINE ARE REQUIRED TO BE WITHHELD PURSUANT TO ANY APPLICABLE LAW,
RULE OR REGULATION.
7.
NO RIGHT TO CONTINUED EMPLOYMENT.
NOTHING IN THIS AGREEMENT
SHALL BE DEEMED TO ENTITLE EXECUTIVE TO CONTINUED EMPLOYMENT WITH THE COMPANY OR
ANY OF ITS AFFILIATES, AND IF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY OR AN
AFFILIATE SHALL TERMINATE PRIOR TO A CHANGE IN CONTROL, EXECUTIVE SHALL HAVE NO
FURTHER RIGHTS UNDER THIS AGREEMENT (EXCEPT AS OTHERWISE PROVIDED HEREUNDER);
PROVIDED, HOWEVER, THAT, NOTWITHSTANDING THE FOREGOING, ANY TERMINATION OF
EXECUTIVE'S EMPLOYMENT DURING THE TERMINATION PERIOD SHALL BE SUBJECT TO THE
PROVISIONS OF THIS AGREEMENT.
8.
OFFSET; NO OBLIGATION TO MITIGATE DAMAGES.
(A)
OFFSET.
THE COMPANY'S OBLIGATION TO MAKE ANY PAYMENTS
PROVIDED FOR IN THIS AGREEMENT AND OTHERWISE TO PERFORM ITS OBLIGATIONS
HEREUNDER SHALL BE SUBJECT TO, AND (SUBJECT TO ANY CODE SECTION 409A
CONSIDERATIONS) MAY BE REDUCED BY THE AMOUNT RELATED TO, ANY RIGHT OF SET-OFF,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER CLAIM, RIGHT OR ACTION WHICH THE
COMPANY MAY HAVE AGAINST THE EXECUTIVE.
(B)
NO OBLIGATION TO MITIGATE.
IN NO EVENT SHALL THE EXECUTIVE BE
OBLIGATED TO SEEK OTHER EMPLOYMENT OR TAKE ANY OTHER ACTION BY WAY OF MITIGATION
OF THE AMOUNTS PAYABLE TO THE EXECUTIVE UNDER ANY OF THE PROVISIONS OF THIS
AGREEMENT AND SUCH