in accordance
with the Company's normal payroll practices, provided that the first payment
will include all amounts which would have been paid in the 37 days following
your termination of employment."
6.
SECTION 5(C) OF THE AGREEMENT IS HEREBY
AMENDED (X) BY DELETING THE SECOND SENTENCE THEREOF AND (Y) BY INSERTING THE
FOLLOWING IMMEDIATELY FOLLOWING THE WORD "RELEASE" AND PRIOR TO THE COMMA WITHIN
THE FIRST SENTENCE THEREOF:
"within thirty (30) days after the date of termination"
7.
SECTION 5(E) OF THE AGREEMENT IS HEREBY
AMENDED BY DELETING THE WORD "YOU" AFTER THE TERM "PAY TO" AND PRIOR TO THE TERM
"AN ADDITIONAL AMOUNT" WITHIN THE SECOND SENTENCE THEREOF, AND SUBSTITUTING THE
FOLLOWING THEREFOR:
"the relevant taxing authority as withholding taxes at such time or times when
each payment of Excise Tax is due,"
8.
SECTION 5(G) OF THE AGREEMENT IS HEREBY
AMENDED TO PROVIDE THAT THE TERM "SEPARATION FROM SERVICE" SHALL BE DEFINED IN
ACCORDANCE WITH SECTION 409A(A)(2)(A)(I) OF THE CODE AND THE APPLICABLE
PROVISIONS OF TREASURY REGULATION SECTION 1.409A-1(H).
9.
THE AGREEMENT IS HEREBY AMENDED BY
INSERTING THE FOLLOWING AS A NEW SECTION 5(H) TO THE AGREEMENT:
2
"(h)
Section 409A.
(i) Anything in this Agreement to
the contrary notwithstanding, if at the time of your 'separation from service,"
the Company determines that the you are a 'specified employee' within the
meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment
or benefit that you become entitled to under this Agreement on account of your
separation from service would be considered deferred compensation subject to the
20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a
result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment
shall not be payable and such benefit shall not be provided until the date that
is the earlier of (A) six months and one day after your separation from service,
or (B) your death.
If any such delayed cash payment is otherwise payable on an
installment basis, the first payment shall include a catch-up payment covering
amounts that would otherwise have been paid during the six-month period but for
the application of this provision, and the balance of the installments shall be
payable in accordance with their original schedule.
(ii)
Solely for purposes of Section 409A of the
Code, each installment payment described in Section 5 is considered a separate
payment."
10.
SECTION 9(E) OF THE AGREEMENT IS HEREBY
AMENDED BY DELETING SUBSECTION (I) OF SUCH SECTION AND SUBSTITUTING THE
FOLLOWING THEREFORE:
"(i) The Company shall cause its rights and obligations hereunder to be assumed
by any person or entity that succeeds to all or substantially all of the
Company's business or that aspect of the Company's business in which you are
principally involved and may assign its rights and obligations hereunder to any
Company Affiliate."
11.
SECTION 9(K) OF THE AGREEMENT IS HEREBY
AMENDED BY INSERTING THE FOLLOWING AFTER THE WORD "AGREEMENT" AND PRIOR TO THE
WORD "COMPLY" WITHIN THE SECOND