OF (I) THE EXPIRATION OF THE SIX-MONTH PERIOD
MEASURED FROM THE DATE OF EXECUTIVE'S "SEPARATION FROM SERVICE" (AS SUCH TERM IS
AT THE TIME DEFINED IN TREASURY REGULATIONS UNDER SECTION 409A) WITH THE COMPANY
(THE "DELAY PERIOD") OR (II) SUCH EARLIER TIME PERMITTED UNDER SECTION 409A OF
THE CODE; PROVIDED, HOWEVER, THAT SUCH DEFERRAL SHALL ONLY BE EFFECTED TO THE
EXTENT REQUIRED TO AVOID ADVERSE TAX TREATMENT TO EXECUTIVE UNDER SECTION 409A,
INCLUDING (WITHOUT LIMITATION) THE ADDITIONAL 20% TAX FOR WHICH EXECUTIVE WOULD
OTHERWISE BE LIABLE UNDER SECTION 409A(A)(1)(B)
OR ANY STATE LAW EQUIVALENT OF
SECTION 409A IN THE ABSENCE OF SUCH DEFERRAL.
DURING ANY PERIOD IN WHICH AN
AGREEMENT PAYMENT TO EXECUTIVE IS DEFERRED PURSUANT TO THE FOREGOING, EXECUTIVE
SHALL BE ENTITLED TO INTEREST ON THE DEFERRED AGREEMENT PAYMENT AT A PER ANNUM
RATE EQUAL TO THE HIGHEST RATE OF INTEREST APPLICABLE TO SIX-MONTH NON-CALLABLE
CERTIFICATES OF DEPOSIT WITH DAILY COMPOUNDING OFFERED BY CITIBANK N.A., WELLS
FARGO BANK, N.A. OR BANK OF AMERICA ON THE DATE OF SUCH SEPARATION FROM
SERVICE.
UPON THE EXPIRATION OF THE APPLICABLE DELAY PERIOD, ANY AGREEMENT
PAYMENT THAT WOULD HAVE OTHERWISE BEEN MADE DURING THAT PERIOD (WHETHER IN A
SINGLE SUM OR IN INSTALLMENTS) IN THE ABSENCE OF THIS SECTION 5.6 SHALL BE PAID
TO EXECUTIVE OR EXECUTIVE'S BENEFICIARY IN ONE LUMP SUM, INCLUDING ALL ACCRUED
INTEREST, AND ALL REMAINING AGREEMENT PAYMENTS, IF ANY, WILL BE PAYABLE IN
ACCORDANCE WITH THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
11
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 THE ADDITIONAL TAX IMPOSED UNDER SECTION 409A, AND
ANY AMBIGUITIES HEREIN WILL BE INTERPRETED TO SO COMPLY.
THE COMPANY AND
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.
5.7
GOLDEN PARACHUTE PAYMENTS.
(A)
IN THE EVENT THAT ANY PAYMENT RECEIVED OR TO BE RECEIVED BY
EXECUTIVE PURSUANT TO THIS AGREEMENT OR OTHERWISE ("PAYMENT") WOULD BE SUBJECT
TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE, OR ANY COMPARABLE
FEDERAL, STATE, LOCAL OR FOREIGN EXCISE TAX (SUCH EXCISE TAX, TOGETHER WITH ANY
INTEREST AND PENALTIES, IS HEREINAFTER COLLECTIVELY REFERRED TO AS THE "EXCISE
TAX"), THEN EXECUTIVE SHALL BE ENTITLED TO RECEIVE AN ADDITIONAL PAYMENT FROM
THE COMPANY ("GROSS-UP PAYMENT") IN SUCH AN AMOUNT THAT AFTER THE PAYMENT OF ALL
TAXES (INCLUDING, WITHOUT LIMITATION, ANY INTEREST AND PENALTIES ON SUCH TAXES
AND THE EXCISE TAX) ON THE PAYMENT AND ON THE GROSS-UP PAYMENT, EXECUTIVE SHALL
RETAIN AN AMOUNT EQUAL TO (A) THE PAYMENT MINUS (B) ALL APPLICABLE TAXES ON THE
PAYMENT OTHER THAN THE EXCISE TAX.
THE INTENT OF THE PARTIES IS THAT THE
COMPANY SHALL BE SOLELY RESPONSIBLE FOR, AND SHALL PAY, ANY EXCISE TAX