HAVE UNDER
THIS PLAN WITH RESPECT TO A QUALIFIED PERFORMANCE-BASED AWARD, IN ANY MANNER
THAT WOULD CAUSE THE QUALIFIED PERFORMANCE-BASED AWARD TO CEASE TO QUALIFY FOR
THE SECTION 162(M) EXEMPTION; PROVIDED, HOWEVER, THAT (I) THE COMMITTEE MAY
PROVIDE, EITHER IN CONNECTION WITH THE GRANT OF THE APPLICABLE AWARD OR BY
AMENDMENT THEREAFTER, THAT ACHIEVEMENT OF SUCH PERFORMANCE MEASURE WILL BE
WAIVED UPON THE DEATH OR DISABILITY OF THE AWARD RECIPIENT (OR UNDER ANY OTHER
CIRCUMSTANCE WITH RESPECT TO WHICH THE EXISTENCE OF SUCH POSSIBLE WAIVER WILL
NOT CAUSE THE AWARD TO FAIL TO QUALIFY FOR THE SECTION 162(M) EXEMPTION), AND
(II) ANY RIGHTS TO VESTING OR ACCELERATED PAYMENT ON A CHANGE OF CONTROL SHALL
APPLY NOTWITHSTANDING THIS SECTION 7(B).
C.
MAXIMUM CASH AWARD.
FOR PURPOSES OF THE
SECTION 162(M) EXEMPTION, THE MAXIMUM AMOUNT OF COMPENSATION PAYABLE WITH
RESPECT TO AN AWARD GRANTED UNDER THE PLAN TO ANY AWARD RECIPIENT WHO IS A
"COVERED EMPLOYEE" (AS DEFINED IN SECTION 162(M) OF THE CODE) THAT IS
DENOMINATED AS A DOLLAR AMOUNT WILL NOT EXCEED $5,000,000 FOR ANY CALENDAR YEAR.
D.
LIMITATION ON ACTION BY THE FULL BOARD.
THE FULL BOARD SHALL NOT BE PERMITTED TO EXERCISE AUTHORITY GRANTED TO THE
COMMITTEE TO THE EXTENT THAT THE GRANT OR EXERCISE OF SUCH AUTHORITY WOULD CAUSE
AN AWARD DESIGNATED AS A QUALIFIED PERFORMANCE-BASED AWARD NOT TO QUALIFY FOR,
OR TO CEASE TO QUALIFY FOR, THE SECTION 162(M) EXEMPTION.
SECTION 8
SECTION 409A OF THE CODE
IT IS THE INTENTION OF THE CORPORATION THAT NO AWARD SHALL BE "DEFERRED
COMPENSATION" SUBJECT TO SECTION 409A OF THE CODE, UNLESS AND TO THE EXTENT THAT
THE COMMITTEE SPECIFICALLY DETERMINES OTHERWISE, AND THE PLAN AND THE TERMS AND
CONDITIONS OF ALL AWARDS SHALL BE INTERPRETED ACCORDINGLY.
IF THE COMMITTEE
DETERMINES
16
THAT AN AWARD IS SUBJECT TO SECTION 409A OF THE CODE, THEN THE AWARD SHALL BE
PAID OR SETTLED ONLY UPON THE AWARD RECIPIENT'S DEATH, DISABILITY, OR SEPARATION
FROM SERVICE, OR UPON A CHANGE OF CONTROL, OR UPON SUCH DATE(S) OR PURSUANT TO A
SCHEDULE DESIGNATED BY THE COMMITTEE, AS SPECIFIED IN THE APPLICABLE AWARD
AGREEMENT, SUBJECT TO THE FOLLOWING PROVISIONS:
1.
DELAY FOR SPECIFIED EMPLOYEES.
NOTWITHSTANDING ANY PROVISION OF THIS PLAN OR THE TERMS OF AN AWARD AGREEMENT TO
THE CONTRARY, AN AWARD THAT IS GRANTED TO A SPECIFIED EMPLOYEE AND THAT IS TO BE
PAID OR SETTLED UPON SUCH SPECIFIED EMPLOYEE'S SEPARATION FROM SERVICE SHALL NOT
BE PAID OR SETTLED PRIOR TO THE EARLIER OF (I) THE FIRST DAY OF THE SEVENTH
(7TH) MONTH FOLLOWING THE DATE OF SUCH SPECIFIED EMPLOYEE'S SEPARATION FROM
SERVICE OR (II) THE SPECIFIED EMPLOYEE'S DEATH.
2.
DISTRIBUTION IN THE EVENT OF INCOME
INCLUSION UNDER CODE SECTION 409A.
IF AN AWARD FAILS TO MEET THE REQUIREMENTS
OF SECTION 409A OF THE CODE, THE AWARD RECIPIENT MAY RECEIVE PAYMENT IN
CONNECTION WITH THE AWARD BEFORE THE AWARD WOULD OTHERWISE BE PAID, PROVIDED,
HOWEVER, THAT THE AMOUNT PAID TO THE AWARD RECIPIENT SHALL NOT EXCEED THE LESSER
OF: (I) THE AMOUNT PAYABLE