DEFERRED COMPENSATION SEPARATION BENEFITS, IF ANY, WILL BE PAYABLE IN ACCORDANCE
WITH THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
EACH PAYMENT
AND BENEFIT PAYABLE UNDER THIS AGREEMENT IS INTENDED TO CONSTITUTE SEPARATE
PAYMENTS FOR PURPOSES OF TREASURY REGULATION SECTION 1.409A-2(B)(2).
(II)
ANY AMOUNT PAID UNDER THIS AGREEMENT THAT
SATISFIES THE REQUIREMENTS OF THE "SHORT-TERM DEFERRAL" RULE SET FORTH IN
TREASURY REGULATION SECTION 1.409A-1(B)(4) WILL NOT CONSTITUTE DEFERRED
COMPENSATION SEPARATION BENEFITS FOR PURPOSES OF CLAUSE (I) ABOVE.
(III)
AMOUNTS PAID UNDER THE AGREEMENT THAT
QUALIFIES AS A PAYMENT MADE AS A RESULT OF AN INVOLUNTARY SEPARATION FROM
SERVICE PURSUANT TO TREASURY REGULATION SECTION 1.409A-1(B)(9)(III) THAT DO NOT
EXCEED THE SECTION 409A LIMIT WILL NOT CONSTITUTE DEFERRED COMPENSATION
SEPARATION BENEFITS FOR PURPOSES OF CLAUSE (I) ABOVE.
FOR THIS PURPOSE,
"SECTION 409A LIMIT" MEANS THE LESSER OF TWO (2) TIMES: (A) THE EXECUTIVE'S
ANNUALIZED COMPENSATION BASED UPON THE ANNUAL RATE OF PAY PAID TO
EXECUTIVE
DURING THE COMPANY'S TAXABLE YEAR PRECEDING THE COMPANY'S TAXABLE YEAR OF THE
EXECUTIVE'S TERMINATION OF EMPLOYMENT AS DETERMINED UNDER TREASURY REGULATION
1.409A-1(B)(9)(III)(A)(1) AND ANY INTERNAL REVENUE SERVICE GUIDANCE ISSUED WITH
RESPECT THERETO; OR (B) THE MAXIMUM AMOUNT THAT MAY BE TAKEN INTO ACCOUNT UNDER
A QUALIFIED PLAN PURSUANT TO CODE SECTION 401(A)(17) FOR THE YEAR IN WHICH
EXECUTIVE'S EMPLOYMENT IS TERMINATED.
(IV)
THE FOREGOING PROVISIONS ARE INTENDED TO
COMPLY WITH THE REQUIREMENTS OF SECTION 409A SO THAT NONE OF THE SEVERANCE
PAYMENTS AND BENEFITS TO BE PROVIDED HEREUNDER WILL BE SUBJECT TO ADDITIONAL TAX
IMPOSED UNDER SECTION 409A, AND ANY AMBIGUITIES HEREIN WILL BE INTERPRETED TO SO
COMPLY.
THE COMPANY AND THE EXECUTIVE AGREE TO WORK TOGETHER IN GOOD FAITH TO
CONSIDER AMENDMENTS TO THIS AGREEMENT AND TO TAKE SUCH REASONABLE ACTIONS WHICH
ARE NECESSARY, APPROPRIATE OR DESIRABLE TO AVOID IMPOSITION OF ANY ADDITIONAL
TAX OR INCOME RECOGNITION PRIOR TO ACTUAL PAYMENT TO EXECUTIVE UNDER
SECTION 409A.
(D)
NO DUTY TO MITIGATE.
THE EXECUTIVE SHALL
NOT BE REQUIRED TO MITIGATE THE AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS
AGREEMENT (WHETHER BY SEEKING NEW EMPLOYMENT OR IN ANY OTHER MANNER).
10.
PROPRIETARY INFORMATION.
DURING THE
EMPLOYMENT TERM AND THEREAFTER, THE EXECUTIVE SHALL NOT, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE BOARD OF DIRECTORS, DISCLOSE OR USE FOR ANY PURPOSE
(EXCEPT IN THE COURSE OF HIS EMPLOYMENT UNDER THIS AGREEMENT AND IN FURTHERANCE
OF THE BUSINESS OF THE COMPANY OR ANY OF ITS AFFILIATES OR SUBSIDIARIES) ANY
CONFIDENTIAL INFORMATION OR PROPRIETARY DATA OF THE COMPANY.
AS AN EXPRESS
CONDITION OF THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY, THE EXECUTIVE AGREES
TO EXECUTE CONFIDENTIALITY AGREEMENTS AS REQUESTED BY THE COMPANY.
11.
RIGHT TO ADVICE OF COUNSEL.
THE EXECUTIVE
ACKNOWLEDGES THAT HE HAS CONSULTED WITH COUNSEL AND IS FULLY AWARE OF HIS RIGHTS
AND OBLIGATIONS UNDER THIS AGREEMENT.
6
12.
SUCCESSORS.
THE COMPANY WILL REQUIRE ANY
SUCCESSOR (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR
OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE
COMPANY TO EXPRESSLY ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN