(AS DEFINED) IN THE PLAN, (A) THE RSUS SHALL BE
PAYABLE UPON THE CHANGE IN CONTROL ONLY IF THE CHANGE IN CONTROL IS A "CHANGE IN
CONTROL" AS DEFINED IN SECTION 409A AND (B) THE RSUS SHALL BE PAID AT THE TIME
PROVIDED IN SECTION 3(B) WHEN THEY WOULD OTHERWISE HAVE VESTED.
IF VESTED RSUS
BECOME PAYABLE FOLLOWING A CHANGE IN CONTROL UPON A SEPARATION FROM SERVICE
WITHIN THE MEANING OF SECTION 409A THAT IS NOT AN INVOLUNTARY SEPARATION AS
DEFINED IN SECTION 409A AND IF THE GRANTEE IS A "SPECIFIED EMPLOYEE" AS DEFINED
IN SECTION 409A, THE RSUS SHALL BE PAID ON THE EARLIEST DAY ON WHICH PAYMENT MAY
BE MADE UNDER SECTION 409A(A)(2)((B)(I) (THE SIX MONTH DELAY RULE FOR SPECIFIED
EMPLOYEES).
(D)
THE PARTIES ACKNOWLEDGE THAT IF THE GRANTEE BECOMES SUBJECT TO
UNITED STATES INCOME TAX WITH RESPECT TO HIS PAY, CERTAIN PROVISIONS OF THIS
AGREEMENT AND THE PLAN AND CERTAIN AMOUNTS PAYABLE UNDER THIS AGREEMENT MAY BE
NONQUALIFIED DEFERRED COMPENSATION
(1) U.S. INTERNAL REVENUE CODE § 409A IMPOSES STRICT REQUIREMENTS AND PENALTIES
ON CERTAIN DEFERRED COMPENSATION (FOR THIS PURPOSE, THE RSUS ARE DEFERRED
COMPENSATION).
THE REGULATIONS ISSUED UNDER § 409A HAVE A SPECIFIC DEFINITION
OF "SEPARATION FROM SERVICE," WHICH GENERALLY REQUIRES THAT THE GRANTEE REDUCE
THE LEVEL OF SERVICE PERFORMED FOR THE COMPANY OR A SUBSIDIARY TO 20% OR LESS OF
THE AVERAGE LEVEL OF SERVICE PERFORMED OVER THE PRECEDING 36 MONTHS.
SECTION 409A WILL BE RELEVANT ONLY IF THE GRANTEE'S PAY FROM THE COMPANY OR A
SUBSIDIARY BECOMES SUBJECT TO U.S. INCOME TAX.
(2) UNDER § 409A IF A "SPECIFIED EMPLOYEE" (DEFINED VERY GENERALLY AS AN OFFICER
WITH PAY FROM THE COMPANY GREATER THAN US$130,000, OR AN INDIVIDUAL WHO OWNS
MORE THAN 5% OF THE COMPANY OR AN INDIVIDUAL WHO OWNS MORE THAN 1% OF THE STOCK
OF THE COMPANY ANY HAS PAY FROM THE COMPANY GREATER THAN US$150,000) RECEIVES A
PAYMENT ON ACCOUNT OF A TERMINATION OF EMPLOYMENT, THE PAYMENT MUST BE DELAYED
FOR 6 MONTHS.
SUBJECT TO SECTION 409A.
THE PARTIES AGREE THAT, TO THE EXTENT NECESSARY, THIS
AGREEMENT AND THE PLAN SHALL BE CONSTRUED, INTERPRETED AND ADMINISTERED IN A
MANNER CONSISTENT WITH SECTION 409A, THE REGULATIONS, RULES, AND OTHER GUIDANCE
ISSUED WITH RESPECT TO SECTION 409A.
THE PARTIES FURTHER AGREE TO AMEND THIS
AGREEMENT AND THE PLAN IN ORDER TO COMPLY WITH RULES, REGULATIONS OR OTHER
GUIDANCE ISSUED WITH RESPECT TO SECTION 409A.
SECTION 4.
NON-TRANSFERABILITY OF RSUS.
EXCEPT AS PERMITTED BY LAW, RSUS,
WHETHER OR NOT VESTED, MAY NOT BE SOLD, ASSIGNED, TRANSFERRED BY GIFT OR
OTHERWISE, PLEDGED OR HYPOTHECATED, OR OTHERWISE DISPOSED OF, BY OPERATION OF
LAW OR OTHERWISE AT ANY TIME. ANY ATTEMPT TO DO SO SHALL BE NULL AND VOID.
SECTION 5.
ENTIRE AGREEMENT.
THE PLAN IS INCORPORATED HEREIN BY REFERENCE.
THE PLAN AND THIS AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES WITH
RESPECT TO THE RSUS AND MAY NOT BE MODIFIED ADVERSELY TO THE GRANTEE'S INTEREST
EXCEPT BY MEANS OF A WRITING SIGNED BY THE