ANY EVENT EXPIRE AT THE TIME SUCH BENEFITS
WOULD HAVE EXPIRED HAD SUCH BENEFITS COMMENCED IMMEDIATELY FOLLOWING THE
TERMINATION DATE.
(II)
TO THE EXTENT ANY CASH
PAYMENT OR CONTINUING BENEFIT TO BE PROVIDED UNDER PARAGRAPH 4(B) IS "DEFERRED
COMPENSATION" FOR PURPOSES OF CODE SECTION 409A, THEN SUCH PAYMENTS OR BENEFITS
SHALL BE MADE OR COMMENCE UPON THE SIXTIETH (60) DAY FOLLOWING THE TERMINATION
DATE. THE FIRST SUCH CASH PAYMENT SHALL INCLUDE PAYMENT OF ALL AMOUNTS THAT
OTHERWISE WOULD HAVE BEEN DUE PRIOR THERETO UNDER THE TERMS OF THIS AGREEMENT
HAD SUCH PAYMENTS COMMENCED IMMEDIATELY UPON EXECUTIVE'S TERMINATION OF
EMPLOYMENT, AND ANY PAYMENTS MADE THEREAFTER SHALL CONTINUE AS PROVIDED HEREIN."
4.
A NEW PARAGRAPH 4(I) IS ADDED TO THE
EMPLOYMENT AGREEMENT AS FOLLOWS:
"(i) Section 409A Compliance
(I)
THE INTENT OF THE PARTIES IS THAT PAYMENTS
AND BENEFITS UNDER THIS AGREEMENT COMPLY WITH CODE SECTION 409A AND,
ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED, THIS AGREEMENT SHALL BE
INTERPRETED TO BE IN COMPLIANCE THEREWITH.
IN NO EVENT WHATSOEVER SHALL THE
COMPANY BE LIABLE FOR ANY ADDITIONAL TAX, INTEREST OR PENALTY THAT MAY BE
IMPOSED ON EXECUTIVE BY CODE SECTION 409A OR DAMAGES FOR FAILING TO COMPLY WITH
CODE SECTION 409A.
(II)
A TERMINATION OF EMPLOYMENT
SHALL NOT BE DEEMED TO HAVE OCCURRED FOR PURPOSES OF ANY PROVISION OF THIS
AGREEMENT PROVIDING FOR THE PAYMENT OF ANY AMOUNTS OR BENEFITS UPON OR FOLLOWING
A TERMINATION OF EMPLOYMENT UNLESS SUCH TERMINATION IS ALSO A "SEPARATION FROM
SERVICE" WITHIN THE MEANING OF CODE SECTION 409A AND, FOR PURPOSES OF ANY SUCH
PROVISION OF THIS AGREEMENT, REFERENCES TO A "TERMINATION," "TERMINATION OF
EMPLOYMENT" OR LIKE TERMS SHALL MEAN "SEPARATION FROM SERVICE."
(III)
NOTWITHSTANDING ANY OTHER
PAYMENT SCHEDULE PROVIDED HEREIN TO THE CONTRARY, IF EXECUTIVE IS DEEMED ON THE
DATE OF TERMINATION TO BE A "SPECIFIED
2
EMPLOYEE" WITHIN THE MEANING OF THAT TERM UNDER CODE SECTION 409A(A)(2)(B), THEN
EACH OF THE FOLLOWING SHALL APPLY:
(A)
WITH REGARD TO ANY PAYMENT THAT IS CONSIDERED
DEFERRED COMPENSATION UNDER CODE SECTION 409A PAYABLE ON ACCOUNT OF A
"SEPARATION FROM SERVICE," SUCH PAYMENT SHALL BE MADE ON THE DATE WHICH IS THE
EARLIER OF (A) THE EXPIRATION OF THE SIX (6)-MONTH PERIOD MEASURED FROM THE DATE
OF SUCH "SEPARATION FROM SERVICE" OF EXECUTIVE, AND (B) THE DATE OF EXECUTIVE'S
DEATH (THE "DELAY PERIOD") TO THE EXTENT REQUIRED UNDER CODE SECTION 409A.
UPON
THE EXPIRATION OF THE DELAY PERIOD, ALL PAYMENTS DELAYED PURSUANT TO THIS
PARAGRAPH 4(I) (WHETHER THEY WOULD HAVE OTHERWISE BEEN PAYABLE IN A SINGLE SUM
OR IN INSTALLMENTS IN THE ABSENCE OF SUCH DELAY) SHALL BE PAID TO EXECUTIVE IN A
LUMP SUM, AND ALL REMAINING PAYMENTS DUE UNDER THIS AGREEMENT SHALL BE PAID OR
PROVIDED IN ACCORDANCE WITH THE NORMAL PAYMENT DATES SPECIFIED FOR THEM HEREIN;
AND
(B)
TO THE EXTENT THAT ANY BENEFITS TO BE
PROVIDED DURING THE DELAY PERIOD IS CONSIDERED DEFERRED COMPENSATION UNDER CODE
SECTION 409A PROVIDED ON ACCOUNT OF A "SEPARATION FROM SERVICE," AND SUCH
BENEFITS ARE NOT OTHERWISE EXEMPT FROM CODE