WAGES AND VACATION; EXPENSES. WITHOUT REGARD TO THE REASON
FOR, OR THE TIMING OF, EMPLOYEE'S TERMINATION OF EMPLOYMENT: (I) THE COMPANY
SHALL PAY THE EMPLOYEE ANY UNPAID BASE SALARY DUE FOR PERIODS PRIOR TO THE
TERMINATION DATE; (II) THE COMPANY SHALL PAY THE EMPLOYEE ALL OF THE EMPLOYEE'S
ACCRUED AND UNUSED VACATION THROUGH THE TERMINATION DATE; AND (III) FOLLOWING
SUBMISSION OF PROPER EXPENSE REPORTS BY THE EMPLOYEE, THE COMPANY SHALL
REIMBURSE THE EMPLOYEE FOR ALL EXPENSES REASONABLY AND NECESSARILY INCURRED BY
THE EMPLOYEE IN CONNECTION WITH THE BUSINESS OF THE COMPANY PRIOR TO THE
TERMINATION DATE. THESE PAYMENTS SHALL BE MADE PROMPTLY UPON TERMINATION AND
WITHIN THE PERIOD OF TIME MANDATED BY LAW.
5.
SECTION 409A. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, IF EMPLOYEE IS A "SPECIFIED EMPLOYEE" ("SPECIFIED EMPLOYEE") WITHIN
THE MEANING OF SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND
ANY FINAL REGULATIONS AND GUIDANCE PROMULGATED THEREUNDER ("SECTION 409A") AT
THE TIME OF EMPLOYEE'S TERMINATION, THEN THE SEVERANCE AND BENEFITS PAYABLE TO
EMPLOYEE PURSUANT TO THIS AGREEMENT (OTHER THAN DUE TO DEATH),
4
IF ANY, AND ANY OTHER SEVERANCE PAYMENTS OR SEPARATION BENEFITS WHICH MAY BE
CONSIDERED DEFERRED COMPENSATION UNDER SECTION 409A (TOGETHER, THE "DEFERRED
COMPENSATION SEPARATION BENEFITS"), WHICH ARE OTHERWISE DUE TO EMPLOYEE ON OR
WITHIN THE SIX (6) MONTH PERIOD FOLLOWING EMPLOYEE'S TERMINATION WILL ACCRUE
DURING SUCH SIX (6) MONTH PERIOD AND WILL BECOME PAYABLE IN A LUMP SUM PAYMENT
ON THE DATE SIX (6) MONTHS AND ONE (1) DAY FOLLOWING THE DATE OF EMPLOYEE'S
TERMINATION OF EMPLOYMENT OR THE DATE OF EMPLOYEE'S DEATH, IF EARLIER. ALL
SUBSEQUENT DEFERRED COMPENSATION SEPARATION BENEFITS, IF ANY, WILL BE PAYABLE IN
ACCORDANCE WITH THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT. THE
FOREGOING PROVISIONS ARE INTENDED TO COMPLY WITH THE REQUIREMENTS OF
SECTION 409A SO THAT NONE OF THE SEVERANCE PAYMENTS AND BENEFITS TO BE PROVIDED
HEREUNDER WILL BE SUBJECT TO THE ADDITIONAL TAX IMPOSED UNDER SECTION 409A, AND
ANY AMBIGUITIES HEREIN WILL BE INTERPRETED TO SO COMPLY. .
6.
LIMITATION ON PAYMENTS. IN THE EVENT THAT THE SEVERANCE AND OTHER
BENEFITS PROVIDED FOR IN THIS AGREEMENT OR OTHERWISE PAYABLE TO THE EMPLOYEE
(I) CONSTITUTE "PARACHUTE PAYMENTS" WITHIN THE MEANING OF SECTION 280G OF THE
CODE, AND (II) WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE
CODE (THE "EXCISE TAX"), THEN EMPLOYEE'S BENEFITS UNDER THIS AGREEMENT SHALL BE
EITHER
(A)
DELIVERED IN FULL, OR
(B)
DELIVERED AS TO SUCH LESSER EXTENT WHICH WOULD RESULT IN NO
PORTION OF SUCH BENEFITS BEING SUBJECT TO THE EXCISE TAX,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the Excise Tax, results in the receipt by
Employee on an after-tax basis, of the greatest amount of benefits,
notwithstanding that all or some portion of such benefits may be taxable under
Section 4999 of the Code.
Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section