PERSON HAS ANY RIGHT, TITLE, OR INTEREST AND THAT YOUR EMPLOYMENT BY THE
COMPANY AS CONTEMPLATED BY THIS AGREEMENT WILL NOT INFRINGE UPON OR VIOLATE THE
RIGHTS OF ANY OTHER PERSON OR ENTITY.
YOU REPRESENT AND WARRANT TO THE COMPANY
THAT YOU HAVE RETURNED ALL PROPERTY AND CONFIDENTIAL INFORMATION BELONGING TO
ANY PRIOR EMPLOYERS.
12.
SECTION 409A.
A.
ANYTHING IN THIS AGREEMENT TO THE
CONTRARY NOTWITHSTANDING, IF AT THE TIME OF YOUR SEPARATION FROM SERVICE WITHIN
THE MEANING OF SECTION 409A OF THE CODE, THE COMPANY DETERMINES THAT YOU ARE 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 YOU BECOME ENTITLED TO UNDER THIS
AGREEMENT 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 MONTHS AND ONE DAY AFTER YOUR SEPARATION FROM SERVICE, OR
(B) YOUR DEATH.
THE DETERMINATION OF WHETHER AND WHEN A SEPARATION FROM SERVICE
HAS OCCURRED SHALL BE MADE IN ACCORDANCE WITH THE PRESUMPTIONS SET FORTH IN
TREASURY REGULATION SECTION 1.409A-1(H).
B.
YOU AND THE COMPANY 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.
YOU
AND THE COMPANY 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.
THE COMPANY MAKES NO REPRESENTATION OR
WARRANTY AND SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON IF ANY
PROVISIONS OF THIS AGREEMENT ARE DETERMINED TO CONSTITUTE DEFERRED COMPENSATION
SUBJECT TO SECTION 409A OF THE CODE BUT DO NOT SATISFY AN EXEMPTION FROM, OR THE
CONDITIONS OF, SUCH SECTION.
13.
ENTIRE AGREEMENT.
THIS AGREEMENT TOGETHER
WITH THE CONFIDENTIALITY AGREEMENT, SETS FORTH THE FULL AND COMPLETE AGREEMENT
BETWEEN THE COMPANY AND YOU REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES
ANY AND ALL PRIOR REPRESENTATIONS OR AGREEMENTS BETWEEN YOU AND THE COMPANY, IF
ANY, WHETHER WRITTEN OR ORAL.
THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED
EXCEPT BY A WRITTEN AGREEMENT, SIGNED BY YOU AND AN OFFICER OF THE COMPANY.
NO
FAILURE ON THE PART OF THE
6
COMPANY OR YOU TO EXERCISE ANY POWER, RIGHT OR PRIVILEGE OR REMEDY UNDER THIS
AGREEMENT, AND NO DELAY ON THE PART OF THE COMPANY OR YOU IN SUCH EXERCISE SHALL
OPERATE AS A WAIVER OF SUCH POWER, RIGHT, PRIVILEGE OR REMEDY; AND NO