COMPANY'S MATERIAL BREACH
OF THIS LETTER AGREEMENT.
YOU MUST PROVIDE THE COMPANY WITH A WRITTEN NOTICE
DETAILING THE SPECIFIC CIRCUMSTANCES ALLEGED TO CONSTITUTE GOOD REASON WITHIN
NINETY (90) DAYS AFTER THE FIRST OCCURRENCE OF SUCH CIRCUMSTANCES.
10.
NO ASSIGNMENTS.
THIS LETTER AGREEMENT IS
PERSONAL TO EACH OF THE PARTIES HERETO.
EXCEPT AS PROVIDED IN THIS SECTION 10
HEREOF, NO PARTY MAY ASSIGN OR DELEGATE ANY RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT FIRST OBTAINING THE WRITTEN CONSENT OF THE OTHER PARTY HERETO.
THE
COMPANY MAY ASSIGN THIS LETTER AGREEMENT TO ANY SUCCESSOR TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE COMPANY, PROVIDED THAT
THE COMPANY WILL REQUIRE SUCH SUCCESSOR TO EXPRESSLY ASSUME AND AGREE TO PERFORM
THIS LETTER AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY
WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE.
AS USED
IN THIS AGREEMENT, "COMPANY" WILL MEAN THE COMPANY AND ANY SUCCESSOR TO ITS
BUSINESS AND/OR ASSETS, WHICH ASSUMES AND AGREES TO PERFORM THE DUTIES AND
OBLIGATIONS OF THE COMPANY UNDER THIS LETTER AGREEMENT BY OPERATION OF LAW OR
OTHERWISE.
11.
WITHHOLDING TAXES.
THE COMPANY MAY WITHHOLD
FROM ANY AND ALL AMOUNTS PAYABLE TO YOU HEREUNDER SUCH FEDERAL, STATE AND LOCAL
TAXES AS MAY BE REQUIRED TO BE WITHHELD PURSUANT TO ANY APPLICABLE LAW OR
REGULATION.
12.
SECTION 409A COMPLIANCE.
(I)
THE INTENT OF THE PARTIES IS THAT
PAYMENTS AND BENEFITS UNDER THIS LETTER AGREEMENT COMPLY WITH INTERNAL REVENUE
CODE SECTION 409A AND THE REGULATIONS AND GUIDANCE PROMULGATED THEREUNDER
(COLLECTIVELY "CODE SECTION 409A") AND, ACCORDINGLY, TO THE MAXIMUM EXTENT
PERMITTED, THIS LETTER AGREEMENT WILL BE INTERPRETED TO BE IN COMPLIANCE
THEREWITH.
IF YOU NOTIFY THE COMPANY (WITH SPECIFICITY AS TO THE REASON
THEREFOR) THAT YOU BELIEVE THAT ANY PROVISION OF THIS LETTER AGREEMENT (OR OF
ANY AWARD OF COMPENSATION, INCLUDING EQUITY COMPENSATION OR BENEFITS) WOULD
CAUSE YOU TO INCUR ANY ADDITIONAL TAX OR INTEREST UNDER CODE SECTION 409A AND
THE COMPANY CONCURS WITH SUCH BELIEF, THE COMPANY WILL, AFTER CONSULTING WITH
YOU, REFORM SUCH PROVISION TO ATTEMPT TO COMPLY WITH CODE SECTION 409A THROUGH
GOOD FAITH MODIFICATIONS TO THE MINIMUM EXTENT REASONABLY APPROPRIATE TO CONFORM
WITH CODE SECTION 409A.
TO THE EXTENT THAT ANY PROVISION HEREOF IS MODIFIED IN
ORDER TO COMPLY WITH CODE
4
SECTION 409A, SUCH MODIFICATION WILL BE MADE IN GOOD FAITH AND WILL, TO THE
MAXIMUM EXTENT REASONABLY POSSIBLE, MAINTAIN THE ORIGINAL INTENT AND ECONOMIC
BENEFIT TO YOU AND THE COMPANY OF THE APPLICABLE PROVISION WITHOUT VIOLATING THE
PROVISIONS OF CODE SECTION 409A.
IN NO EVENT WHATSOEVER WILL THE COMPANY BE
LIABLE FOR ANY ADDITIONAL TAX, INTEREST OR PENALTY THAT MAY BE IMPOSED ON YOU BY
CODE SECTION 409A OR DAMAGES FOR FAILING TO COMPLY WITH CODE SECTION 409A.
(II)
A TERMINATION OF EMPLOYMENT WILL NOT BE
DEEMED TO HAVE OCCURRED FOR PURPOSES OF ANY PROVISION OF THIS LETTER AGREEMENT
PROVIDING FOR THE PAYMENT OF ANY AMOUNTS OR BENEFITS UPON OR FOLLOWING A
TERMINATION OF EMPLOYMENT UNLESS SUCH