AND
REPLACING SUCH PORTION OF CLAUSE 2 WITH THE FOLLOWING:
"IN EQUAL MONTHLY INSTALLMENTS OVER A PERIOD OF TWENTY-FOUR (24) MONTHS
COMMENCING WITH THE
1
FIRST PAYROLL FOLLOWING THE TERMINATION DATE;
PROVIDED, HOWEVER, TO THE EXTENT
THAT SUCH AMOUNT IS EXEMPT FROM SECTION 409A AND/OR IF SUCH CHANGE IN CONTROL
CONSTITUTES A CHANGE IN OWNERSHIP, CHANGE IN EFFECTIVE CONTROL OR A CHANGE IN
OWNERSHIP OF A SUBSTANTIAL PORTION OF THE ASSETS OF THE COMPANY UNDER REGULATION
SECTION 1.409A-3(I)(5), THE FOREGOING AMOUNT SHALL BE PAID IN A LUMP SUM IN
ACCORDANCE WITH THE PROVISIONS SET FORTH UNDER THE CAPTION "TIMING OF CERTAIN
PAYMENTS" BELOW;"
5.
THE PROVISIONS OF THE OCTOBER 2008 AMENDMENT UNDER THE CAPTION
"TIMING OF CERTAIN PAYMENTS" ARE HEREBY AMENDED TO (A) DELETE THE PORTION OF THE
PROVISION AFTER THE SEMICOLON AND SUBSTITUTE A PERIOD FOR THE SEMICOLON AND
(B) ADD THE FOLLOWING SENTENCES AT THE END OF THE PROVISION:
"THE COMPANY MAKES NO REPRESENTATIONS REGARDING THE TAX IMPLICATIONS OF THE
COMPENSATION AND BENEFITS TO BE PAID TO YOU UNDER THE AGREEMENT, INCLUDING,
WITHOUT LIMIT, UNDER SECTION 409A AND APPLICABLE GUIDANCE AND REGULATIONS
THEREUNDER.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF (I) AT THE TIME
OF YOUR "SEPARATION FROM SERVICE" (AS DEFINED IN TREAS. REG.
SECTION 1.409A-1(H)) WITH THE COMPANY OTHER THAN AS A RESULT OF YOUR DEATH,
(II) YOU ARE A "SPECIFIED EMPLOYEE" (AS DEFINED IN SECTION 409A(A)(2)(B)(I) OF
THE CODE), (III) ONE OR MORE OF THE PAYMENTS OR BENEFITS RECEIVED OR TO BE
RECEIVED BY YOU PURSUANT TO THE AGREEMENT WOULD CONSTITUTE DEFERRED COMPENSATION
SUBJECT TO SECTION 409A, AND (IV) THE DEFERRAL OF THE COMMENCEMENT OF ANY SUCH
PAYMENTS OR BENEFITS OTHERWISE PAYABLE HEREUNDER AS A RESULT OF SUCH SEPARATION
OF SERVICE IS NECESSARY IN ORDER TO PREVENT ANY ACCELERATED OR ADDITIONAL TAX
UNDER SECTION 409A OF THE CODE, THEN THE COMPANY WILL DEFER THE COMMENCEMENT OF
THE PAYMENT OF ANY SUCH PAYMENTS OR BENEFITS HEREUNDER TO THE EXTENT NECESSARY
(WITHOUT ANY REDUCTION IN SUCH PAYMENTS OR BENEFITS ULTIMATELY PAID OR PROVIDED
TO YOU) UNTIL THE DATE THAT IS SIX (6) MONTHS FOLLOWING YOUR SEPARATION FROM
SERVICE WITH THE COMPANY (OR THE EARLIEST DATE AS IS PERMITTED UNDER
SECTION 409A OF THE CODE).
ANY PAYMENT DEFERRED DURING SUCH SIX-MONTH PERIOD
SHALL BE THEREAFTER IMMEDIATELY PAID IN A LUMP SUM.
ANY REMAINING PAYMENTS OR
BENEFITS SHALL BE MADE AS OTHERWISE SCHEDULED UNDER THE AGREEMENT.
FURTHERMORE,
TO THE EXTENT ANY OTHER PAYMENTS OF MONEY OR OTHER BENEFITS DUE TO YOU HEREUNDER
COULD CAUSE THE APPLICATION OF AN ACCELERATED OR ADDITIONAL TAX UNDER
SECTION 409A OF THE CODE, SUCH PAYMENTS OR OTHER BENEFITS SHALL BE DEFERRED IF
DEFERRAL WILL MAKE SUCH PAYMENT OR OTHER BENEFITS COMPLIANT UNDER SECTION 409A
OF THE CODE, OR OTHERWISE SUCH PAYMENT OR OTHER BENEFITS SHALL BE RESTRUCTURED,
TO THE EXTENT POSSIBLE, IN A MANNER DETERMINED BY THE COMPANY THAT DOES NOT
CAUSE SUCH AN ACCELERATED OR ADDITIONAL TAX.
TO THE EXTENT ANY REIMBURSEMENTS
OR IN-KIND BENEFITS DUE TO YOU UNDER THE AGREEMENT CONSTITUTE DEFERRED