TAX, THE BENEFIT
WILL BE DELAYED AND WILL BEGIN BEING PROVIDED ON THE EARLIER OF THE FIRST DAY
FOLLOWING THE SIX (6) MONTH ANNIVERSARY OF EXECUTIVE'S DATE OF TERMINATION OR
DEATH.
ANY PAYMENT OR BENEFIT DUE UPON A TERMINATION OF EMPLOYMENT THAT
REPRESENTS A "DEFERRAL OF COMPENSATION" WITHIN THE MEANING OF SECTION 409A SHALL
BE PAID OR PROVIDED ONLY UPON A "SEPARATION FROM SERVICE" AS DEFINED IN TREAS.
REG. § 1.409A-1(H).
EACH PAYMENT MADE UNDER THIS AGREEMENT SHALL BE DEEMED TO
BE A SEPARATE PAYMENT FOR PURPOSES OF SECTION 409A.
AMOUNTS PAYABLE UNDER THIS
AGREEMENT SHALL BE DEEMED NOT TO BE A "DEFERRAL OF COMPENSATION" SUBJECT TO
SECTION 409A TO THE EXTENT PROVIDED IN THE EXCEPTIONS IN TREASURY REGULATION §§
1.409A-1(B)(4) ("SHORT-TERM DEFERRALS") AND (B)(9) ("SEPARATION PAY PLANS,"
INCLUDING THE EXCEPTION UNDER SUBPARAGRAPH (III)) AND OTHER APPLICABLE
PROVISIONS OF TREASURY REGULATION § 1.409A-1 THROUGH A-6.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, ANY PAYMENT OR BENEFIT
UNDER THIS AGREEMENT OR OTHERWISE THAT IS EXEMPT FROM SECTION 409A PURSUANT TO
TREASURY REGULATION § 1.409A-1(B)(9)(V)(A) OR (C) (RELATING TO CERTAIN
REIMBURSEMENTS AND IN-KIND BENEFITS) SHALL BE PAID OR PROVIDED ONLY TO THE
EXTENT THAT THE EXPENSES ARE NOT INCURRED, OR THE BENEFITS ARE NOT PROVIDED,
BEYOND THE LAST DAY OF THE SECOND CALENDAR YEAR FOLLOWING THE CALENDAR YEAR IN
WHICH EXECUTIVE'S "SEPARATION FROM SERVICE" OCCURS; AND PROVIDED FURTHER THAT
SUCH EXPENSES ARE REIMBURSED NO LATER THAN THE LAST DAY OF THE THIRD CALENDAR
YEAR FOLLOWING THE CALENDAR YEAR IN WHICH EXECUTIVE'S "SEPARATION FROM SERVICE"
OCCURS.
TO THE EXTENT ANY EXPENSE REIMBURSEMENT (INCLUDING WITHOUT LIMITATION
ANY REIMBURSEMENT OF INTEREST OR PENALTIES RELATED TO TAXES) OR THE PROVISION OF
ANY IN-KIND BENEFIT IS DETERMINED TO BE SUBJECT TO SECTION 409A (AND NOT EXEMPT
PURSUANT TO THE PRIOR SENTENCE OR OTHERWISE), THE AMOUNT OF ANY SUCH EXPENSES
ELIGIBLE FOR REIMBURSEMENT, OR THE PROVISION OF ANY IN-KIND BENEFIT, IN ONE
CALENDAR YEAR SHALL NOT AFFECT THE EXPENSES ELIGIBLE FOR REIMBURSEMENT IN ANY
OTHER CALENDAR YEAR (EXCEPT FOR ANY LIFE-TIME OR OTHER AGGREGATE LIMITATION
APPLICABLE TO MEDICAL EXPENSES), IN NO EVENT SHALL ANY EXPENSES BE REIMBURSED
AFTER THE LAST DAY OF THE CALENDAR YEAR FOLLOWING THE CALENDAR YEAR IN WHICH
EXECUTIVE INCURRED SUCH EXPENSES, AND IN NO EVENT SHALL ANY RIGHT TO
REIMBURSEMENT OR THE PROVISION OF ANY IN-KIND BENEFIT BE SUBJECT TO LIQUIDATION
OR EXCHANGE FOR ANOTHER BENEFIT.
20.
HEADINGS.
THE SECTION HEADINGS CONTAINED IN THIS AGREEMENT ARE
FOR CONVENIENCE ONLY AND IN NO MANNER SHALL BE CONSTRUED AS PART OF THIS
AGREEMENT.
21.
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SHALL SUPERSEDE ALL
PRIOR AGREEMENTS, WHETHER WRITTEN OR ORAL, WITH RESPECT THERETO, INCLUDING THE
EXISTING EMPLOYMENT AGREEMENT (EXCEPT WITH REGARD TO OUTSTANDING EQUITY AWARDS
GRANTED IN ACCORDANCE THEREWITH).
IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE
TERMS OF THIS AGREEMENT AND THE TERMS OF ANY OTHER COMPANY PLAN, POLICY, EQUITY
GRANT, ARRANGEMENT OR AGREEMENT WITH EXECUTIVE, THE PROVISIONS MOST FAVORABLE