SECTION 409A OF THE CODE.
TO THIS END, THE
PARTIES AGREE THAT THE SEVERANCE BENEFITS PAYABLE UNDER THIS EMPLOYMENT
AGREEMENT WILL BE PAID ONLY UPON A "SEPARATION FROM SERVICE" (WITHIN THE MEANING
OF SECTION 409A OF THE CODE) THAT OCCURS COINCIDENT WITH OR FOLLOWING THE DATE
OF TERMINATION.
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IF THE EXECUTIVE IS
A "SPECIFIED EMPLOYEE", AS DEFINED IN, AND PURSUANT TO, REG.
SECTION 1.409A-1(I) OR ANY SUCCESSOR REGULATION, ON THE DATE OF TERMINATION, ANY
PAYMENT PROVIDED HEREUNDER THAT IS DESIGNATED AS BEING "SUBJECT TO SECTION 15"
SHALL BE MADE TO THE EXECUTIVE NO EARLIER THAN THE DATE WHICH IS SIX (6) MONTHS
FROM THE DATE OF TERMINATION; PROVIDED, THAT SUCH PAYMENT MAY BE MADE EARLIER IN
THE EVENT OF THE EXECUTIVE'S DEATH.
IF ANY PAYMENT TO THE EXECUTIVE IS DELAYED
PURSUANT TO CLAUSE (I) OF THE FOREGOING SENTENCE, SUCH PAYMENT INSTEAD SHALL BE
MADE ON THE FIRST BUSINESS DAY FOLLOWING THE EXPIRATION OF THE SIX-MONTH PERIOD
REFERRED TO IN THE PRIOR SENTENCE OR THE DATE OF THE EXECUTIVE'S DEATH, AS
APPLICABLE.
(B)
PAYMENT PERIOD.
WHENEVER A PAYMENT UNDER THIS AGREEMENT SPECIFIES
A PAYMENT PERIOD WITH REFERENCE TO A NUMBER OF DAYS (E.G., "PAYMENT SHALL BE
MADE WITHIN NINETY (90) DAYS FOLLOWING THE DATE OF TERMINATION), THE ACTUAL DATE
OF PAYMENT WITHIN THE SPECIFIED PERIOD SHALL BE WITHIN THE SOLE DISCRETION OF
THE COMPANY.
10
(C)
REIMBURSEMENT.
WITH REGARD TO ANY
PROVISION HEREIN THAT PROVIDES FOR REIMBURSEMENT OF COSTS AND EXPENSES OR
IN-KIND BENEFITS, EXCEPT AS PERMITTED BY SECTION 409A OF THE CODE, (I) THE RIGHT
TO REIMBURSEMENT OR IN-KIND BENEFITS SHALL NOT BE SUBJECT TO LIQUIDATION OR
EXCHANGE FOR ANOTHER BENEFIT, (II) THE AMOUNT OF EXPENSES ELIGIBLE FOR
REIMBURSEMENT, OF IN-KIND BENEFITS, PROVIDED DURING ANY TAXABLE YEAR SHALL NOT
AFFECT THE EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND BENEFITS TO BE
PROVIDED, IN ANY OTHER TAXABLE YEAR, PROVIDED THAT THE FOREGOING CLAUSE
(II) SHALL NOT BE VIOLATED WITHOUT REGARD TO EXPENSES REIMBURSED UNDER ANY
ARRANGEMENT COVERED BY SECTION 105(B) OF THE CODE SOLELY BECAUSE SUCH EXPENSES
ARE SUBJECT TO A LIMIT RELATED TO THE PERIOD THE ARRANGEMENT IS IN EFFECT AND
(III) SUCH PAYMENTS SHALL BE MADE ON OR BEFORE THE LAST DAY OF THE EXECUTIVE'S
TAXABLE YEAR FOLLOWING THE TAXABLE YEAR IN WHICH THE EXPENSE OCCURRED.
(D)
INSTALLMENTS.
IF UNDER THIS AGREEMENT, AN
AMOUNT IS TO BE PAID IN TWO OR MORE INSTALLMENTS, FOR PURPOSES OF SECTION 409A
OF THE CODE, EACH INSTALLMENT SHALL BE TREATED AS A SEPARATE PAYMENT.
16.
ATTORNEY FEES. THE COMPANY SHALL PAY THE
EXECUTIVE'S REASONABLE LEGAL FEES OF PROSKAUER ROSE LLP AND OUT-OF-POCKET
EXPENSES INCURRED IN CONNECTION WITH THE NEGOTIATION AND DRAFTING OF THIS
EMPLOYMENT AGREEMENT AND ANY EQUITY AWARD AGREEMENTS, AND OTHER REASONABLE LEGAL
FEES AND OUT-OF-POCKET EXPENSES OF PROSKAUER ROSE LLP RELATED TO THE SALE OF THE
COMPANY CONSUMMATED ON OR ABOUT MAY 31, 2007, SUBJECT, IN EACH CASE, TO AND
WITHIN TEN (10) DAYS AFTER HIS WRITTEN REQUEST FOR SUCH PAYMENT ACCOMPANIED BY
REASONABLY SATISFACTORY EVIDENCE