ENSURE THAT THE PLAN SO COMPLIES.
IN
FURTHERANCE THEREOF, NO PAYMENTS MAY BE ACCELERATED UNDER THE PLAN IF SUCH
ACCELERATION WOULD CAUSE AMOUNTS DEFERRED UNDER THE PLAN TO BECOME SUBJECT TO
(I) THE GROSS INCOME INCLUSION SET FORTH WITHIN CODE SECTION 409A(A)(1)(A) (THE
"GROSS INCOME INCLUSION") OR (II) THE INTEREST AND ADDITIONAL TAX SET FORTH
WITHIN CODE SECTION 409A(A)(1)(B) (THE "INTEREST AND ADDITIONAL TAXES" AND
TOGETHER, WITH THE GROSS INCOME INCLUSION REFERRED TO HEREIN AS THE
"SECTION 409A PENALTIES").
ALL REFERENCES IN THE PLAN TO SECTION 409A OF THE
CODE SHALL INCLUDE ANY SUCCESSOR PROVISION THERETO AND ANY GUIDANCE (WHETHER IN
THE FORM OF NOTICES, REGULATIONS OR OTHERWISE) PROMULGATED THEREUNDER.
SUBJECT
TO SECTION 6.12, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ANY
PROVISION OF THIS PLAN OR ANY ADMINISTRATIVE PROCEDURE PROMULGATED WITH RESPECT
TO THE PLAN THAT IS INCONSISTENT WITH OR VIOLATES SECTION 409A OF THE CODE SO AS
TO CAUSE AMOUNTS DEFERRED UNDER THE PLAN TO BECOME SUBJECT TO SECTION 409A
PENALTIES, SUCH PROVISION SHALL BE AUTOMATICALLY DEEMED REFORMED OR STRICKEN TO
THE MINIMUM EXTENT NECESSARY TO COMPLY WITH SECTION 409A OF THE CODE AND TO
PRESERVE THE INTENT HEREOF.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF
ANY PAYMENTS DUE TO A PARTICIPANT HEREUNDER COULD GIVE RISE TO SECTION 409A
PENALTIES, SUCH PAYMENTS OR OTHER BENEFITS SHALL BE DEFERRED IF THE BOARD OR THE
ADMINISTRATOR, EACH IN THEIR SOLE AND ABSOLUTE DISCRETION, DETERMINES THAT
DEFERRAL WILL MAKE SUCH PAYMENT COMPLIANT UNDER SECTION 409A OF THE CODE SO AS
TO AVOID SECTION 409A PENALTIES WITH RESPECT TO THE PAYMENT, OR OTHERWISE SUCH
PAYMENT SHALL BE RESTRUCTURED, TO THE EXTENT POSSIBLE, IN A MANNER, DETERMINED
BY THE BOARD OR THE ADMINISTRATOR, EACH IN THEIR SOLE AND ABSOLUTE DISCRETION,
THAT DOES NOT CAUSE APPLICATION OF SECTION 409A PENALTIES.
THE BOARD AND THE
ADMINISTRATOR SHALL IMPLEMENT THE PROVISIONS OF THIS SECTION 6.18 IN GOOD FAITH.
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Adopted November
, 2008
By:
Name: Gary C. Tolman
Title: Chief Executive Officer
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