THE EMPLOYMENT, IF ANY, OF THE EMPLOYEE AT ANY TIME
OR FOR ANY REASON WHATSOEVER, WITH OR WITHOUT CAUSE, AND THE EMPLOYEE HEREBY
ACKNOWLEDGES AND AGREES THAT NEITHER THE COMPANY NOR ANY OTHER PERSON HAS MADE
ANY REPRESENTATIONS OR PROMISES WHATSOEVER TO THE EMPLOYEE CONCERNING THE
EMPLOYEE'S EMPLOYMENT OR CONTINUED EMPLOYMENT BY THE COMPANY OR ANY AFFILIATE
THEREOF.
8.
CHANGE IN CAPITALIZATION.
IN THE EVENT OF ANY CHANGE IN THE
OUTSTANDING COMMON STOCK BY REASON OF A STOCK SPLIT, SPIN-OFF, STOCK DIVIDEND,
STOCK COMBINATION OR RECLASSIFICATION, RECAPITALIZATION OR MERGER, CHANGE OF
CONTROL, OR SIMILAR EVENT, THE PROVISIONS OF SECTION 8 SHALL GOVERN THE
TREATMENT OF THIS PERFORMANCE RESTRICTED STOCK UNIT AWARD.
9.
WITHHOLDING.
IT SHALL BE A CONDITION OF THE OBLIGATION OF THE
COMPANY UPON DELIVERY OF COMMON STOCK TO THE EMPLOYEE PURSUANT TO SECTION 2
ABOVE THAT THE EMPLOYEE
4
PAY TO THE COMPANY SUCH AMOUNT AS MAY BE REQUESTED BY THE COMPANY FOR THE
PURPOSE OF SATISFYING ANY LIABILITY FOR ANY FEDERAL, STATE OR LOCAL INCOME OR
OTHER TAXES REQUIRED BY LAW TO BE WITHHELD WITH RESPECT TO SUCH COMMON STOCK.
THE COMPANY SHALL BE AUTHORIZED TO TAKE SUCH ACTION AS MAY BE NECESSARY, IN THE
OPINION OF THE COMPANY'S COUNSEL (INCLUDING, WITHOUT LIMITATION, WITHHOLDING
COMMON STOCK OTHERWISE DELIVERABLE TO THE EMPLOYEE HEREUNDER AND/OR WITHHOLDING
AMOUNTS FROM ANY COMPENSATION OR OTHER AMOUNT OWING FROM THE COMPANY TO THE
EMPLOYEE), TO SATISFY THE OBLIGATIONS FOR PAYMENT OF THE MINIMUM AMOUNT OF ANY
SUCH TAXES.
IN ADDITION, IF THE COMPANY'S ACCOUNTANTS DETERMINE THAT THERE
WOULD BE NO ADVERSE ACCOUNTING IMPLICATIONS TO THE COMPANY, THE EMPLOYEE MAY BE
PERMITTED TO ELECT TO USE COMMON STOCK OTHERWISE DELIVERABLE TO THE EMPLOYEE
HEREUNDER TO SATISFY ANY SUCH OBLIGATIONS, SUBJECT TO SUCH PROCEDURES AS THE
COMPANY'S ACCOUNTANTS MAY REQUIRE.
THE EMPLOYEE IS HEREBY ADVISED TO SEEK HIS
OWN TAX COUNSEL REGARDING THE TAXATION OF THE GRANT OF PERFORMANCE RESTRICTED
STOCK UNITS MADE HEREUNDER.
10.
SECURITIES LAWS.
UPON THE DELIVERY OF ANY COMMON STOCK TO THE
EMPLOYEE, THE COMPANY MAY REQUIRE THE EMPLOYEE TO MAKE OR ENTER INTO SUCH
WRITTEN REPRESENTATIONS, WARRANTIES AND AGREEMENTS AS THE COMMITTEE MAY
REASONABLY REQUEST IN ORDER TO COMPLY WITH APPLICABLE SECURITIES LAWS OR WITH
THIS AGREEMENT.
THE DELIVERY OF THE COMMON STOCK HEREUNDER SHALL BE SUBJECT TO
ALL APPLICABLE LAWS, RULES AND REGULATIONS AND TO SUCH APPROVALS OF ANY
GOVERNMENTAL AGENCIES AS MAY BE REQUIRED.
11.
SECTION 409A OF THE CODE.
IN THE EVENT THAT IT IS REASONABLY
DETERMINED BY THE COMPANY THAT , AS A RESULT OF THE DEFERRED COMPENSATION TAX
RULES UNDER SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (AND
ANY RELATED REGULATIONS OR OTHER PRONOUNCEMENTS THEREUNDER) ("THE DEFERRED
COMPENSATION TAX RULES"), BENEFITS THAT THE EMPLOYEE IS ENTITLED TO UNDER THE
TERMS OF THIS AGREEMENT MAY NOT BE MADE AT THE TIME CONTEMPLATED BY THE TERMS
HEREOF OR THEREOF, AS THE CASE MAY BE, WITHOUT CAUSING EMPLOYEE TO BE SUBJECT TO
TAX UNDER THE DEFERRED COMPENSATION TAX RULES, THE COMPANY SHALL, IN