(I) THAT DOES NOT COMPLY THEREWITH OR (II) THAT DOES NOT
EXPRESSLY STATE AND REQUIRE THAT SUCH BENEFIT PLAN AND ANY COMPENSATION
THEREUNDER SHALL BE SUBJECT TO ANY RELEVANT COMPENSATION REGULATIONS ADOPTED,
ISSUED OR RELEASED ON OR AFTER THE DATE ANY SUCH BENEFIT PLAN IS ADOPTED. TO THE
EXTENT THAT EESA AND/OR THE COMPENSATION REGULATIONS ARE AMENDED OR OTHERWISE
CHANGE DURING THE RELEVANT PERIOD IN A MANNER THAT REQUIRES CHANGES TO
THEN-EXISTING BENEFIT PLANS, OR THAT REQUIRES OTHER ACTIONS, THE COMPANY AND ITS
AFFILIATES SHALL EFFECT SUCH CHANGES TO ITS OR THEIR BENEFIT PLANS, AND TAKE
SUCH OTHER ACTIONS, AS PROMPTLY AS PRACTICABLE AFTER IT HAS ACTUAL KNOWLEDGE OF
SUCH AMENDMENTS OR CHANGES IN ORDER TO BE IN COMPLIANCE WITH THIS SECTION 4.5(A)
(AND SHALL BE DEEMED TO BE IN COMPLIANCE FOR A REASONABLE PERIOD TO EFFECT SUCH
CHANGES).
IN ADDITION, THE COMPANY AND ITS AFFILIATES SHALL TAKE ALL NECESSARY
ACTION, OTHER THAN TO THE EXTENT PROHIBITED BY APPLICABLE LAW OR REGULATION
APPLICABLE OUTSIDE OF THE UNITED STATES, TO ENSURE THAT THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WILL NOT ACCELERATE THE VESTING,
PAYMENT OR DISTRIBUTION OF ANY EQUITY-BASED AWARDS, DEFERRED CASH AWARDS OR ANY
NONQUALIFIED DEFERRED COMPENSATION PAYABLE BY THE COMPANY OR ANY OF ITS
AFFILIATES.
(B)
ADDITIONAL WAIVERS.
AFTER THE CLOSING DATE, IN CONNECTION WITH THE
HIRING OR PROMOTION OF A SECTION 4.5 EMPLOYEE AND/OR THE PROMULGATION OF
APPLICABLE COMPENSATION REGULATIONS OR OTHERWISE, TO THE EXTENT ANY SECTION 4.5
EMPLOYEE SHALL NOT HAVE EXECUTED A WAIVER WITH RESPECT TO THE APPLICATION TO
SUCH SECTION 4.5 EMPLOYEE OF THE COMPENSATION REGULATIONS, THE COMPANY SHALL USE
ITS BEST EFFORTS TO (I) OBTAIN FROM SUCH SECTION 4.5 EMPLOYEE A WAIVER IN
SUBSTANTIALLY THE FORM ATTACHED HERETO AS ANNEX D AND (II) DELIVER SUCH WAIVER
TO THE INVESTOR AS PROMPTLY AS POSSIBLE, IN EACH CASE, WITHIN SIXTY DAYS OF THE
CLOSING DATE OR, IF LATER, WITHIN SIXTY DAYS OF SUCH SECTION 4.5 EMPLOYEE
BECOMING SUBJECT TO THE REQUIREMENTS OF THIS SECTION. "SECTION 4.5 EMPLOYEE"
MEANS (A) EACH SENIOR EXECUTIVE OFFICER AND (B) ANY OTHER EMPLOYEE OF THE
COMPANY OR ITS AFFILIATES DETERMINED AT ANY TIME TO BE SUBJECT TO SECTION 111
OF
EESA AND THE COMPENSATION REGULATIONS.
(C)
CLAWBACK.
IN THE EVENT THAT ANY SECTION 4.5 EMPLOYEE RECEIVES A
PAYMENT IN CONTRAVENTION OF THE PROVISIONS OF THIS SECTION 4.5, THE COMPANY
SHALL PROMPTLY PROVIDE SUCH INDIVIDUAL WITH WRITTEN NOTICE THAT THE AMOUNT OF
SUCH PAYMENT MUST BE REPAID TO THE COMPANY IN
-10-
FULL WITHIN FIFTEEN BUSINESS DAYS FOLLOWING RECEIPT OF SUCH NOTICE OR SUCH
EARLIER TIME AS MAY BE REQUIRED BY THE COMPENSATION REGULATIONS AND SHALL
PROMPTLY INFORM THE INVESTOR (I) UPON DISCOVERING THAT A PAYMENT IN
CONTRAVENTION OF THIS SECTION 4.5 HAS BEEN MADE AND (II) FOLLOWING THE REPAYMENT
TO THE COMPANY OF SUCH AMOUNT AND SHALL TAKE SUCH OTHER ACTIONS AS MAY BE
NECESSARY TO COMPLY WITH THE COMPENSATION REGULATIONS.
(D)
LIMITATION ON DEDUCTIONS.
DURING THE RELEVANT PERIOD, THE COMPANY
AGREES THAT IT SHALL NOT CLAIM