THAT THE COMPANY OR ANY
AFFILIATE WILL RETAIN THE PARTICIPANT AS AN EMPLOYEE OR OTHER SERVICE PROVIDER
FOR ANY PERIOD OF TIME OR AT ANY PARTICULAR RATE OF COMPENSATION.
9.
AGREEMENT TO TERMS OF PLAN AND
AGREEMENT.
THE APPLICABLE TERMS OF THE PLAN ARE HEREBY INCORPORATED BY
REFERENCE.
THE PARTICIPANT HAS RECEIVED A COPY OF THE PLAN, HAS READ AND
4
UNDERSTANDS THE TERMS OF THE PLAN AND THIS AGREEMENT, AND AGREES TO BE BOUND BY
THEIR TERMS AND CONDITIONS WITH RESPECT TO THIS AWARD.
10.
TAX CONSEQUENCES.
THE PARTICIPANT
ACKNOWLEDGES THAT (I) THERE MAY BE TAX CONSEQUENCES UPON PAYMENT OF THE AWARD
AND UPON ANY ACQUISITION OR DISPOSITION OF SHARES OF COMMON STOCK ISSUED
PURSUANT TO THIS AWARD AND (II) PARTICIPANT SHOULD CONSULT A TAX ADVISER
REGARDING THE TAX CONSEQUENCES OF THIS AWARD.
THE PARTICIPANT IS SOLELY
RESPONSIBLE FOR DETERMINING THE TAX CONSEQUENCES OF THE AWARD AND FOR SATISFYING
THE PARTICIPANT'S TAX OBLIGATIONS WITH RESPECT TO THE AWARD (INCLUDING, BUT NOT
LIMITED TO, ANY INCOME OR EXCISE TAXES RESULTING FROM THE APPLICATION OF CODE
SECTION 409A).
11.
BINDING EFFECT.
SUBJECT TO THE LIMITATIONS
STATED ABOVE AND IN THE PLAN, THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE DISTRIBUTEES, LEGATEES AND PERSONAL REPRESENTATIVES OF THE
PARTICIPANT AND THE SUCCESSORS OF THE COMPANY.
12.
CONFLICTS.
IN THE EVENT OF ANY CONFLICT
BETWEEN THE PROVISIONS OF THE PLAN AND THE PROVISIONS OF THIS AGREEMENT, THE
PROVISIONS OF THE PLAN SHALL GOVERN.
ALL REFERENCES HEREIN TO THE PLAN SHALL
MEAN THE PLAN AS IN EFFECT ON THE DATE HEREOF.
13.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN A NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,
BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE IN THE SAME INSTRUMENT.
14.
MISCELLANEOUS.
THE PARTIES AGREE TO EXECUTE
SUCH FURTHER INSTRUMENTS AND TAKE SUCH FURTHER ACTIONS AS MAY BE NECESSARY TO
CARRY OUT THE INTENT OF THE PLAN AND THIS AGREEMENT.
THIS AGREEMENT AND THE
PLAN SHALL CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
15.
SECTION 409A.
FOR PURPOSES OF THIS
AGREEMENT, ALL RIGHTS TO PAYMENTS HEREUNDER SHALL BE TREATED AS RIGHTS TO
RECEIVE A SERIES OF SEPARATE PAYMENTS AND BENEFITS TO THE FULLEST EXTENT ALLOWED
BY SECTION 409A OF THE CODE.
FOR PURPOSES OF THIS AGREEMENT, TERMINATION OF
EMPLOYMENT SHALL BE CONSTRUED CONSISTENTLY WITH A "TERMINATION OF EMPLOYMENT"
(AS DEFINED IN THE EMPLOYMENT AGREEMENT).
ADDITIONALLY, IF THE PARTICIPANT IS A
SPECIFIED EMPLOYEE (AS DEFINED IN THE EMPLOYMENT AGREEMENT) AS OF PARTICIPANT'S
TERMINATION OF EMPLOYMENT, AND IF THE AMOUNTS THAT PARTICIPANT IS ENTITLED TO
RECEIVE HERETO ARE NOT OTHERWISE EXEMPT FROM SECTION 409A OF THE CODE, THEN TO
THE EXTENT NECESSARY TO COMPLY WITH SECTION 409A OF THE CODE NO PAYMENT THAT IS
TRIGGERED ON THE PARTICIPANT'S TERMINATION OF EMPLOYMENT (SUCH AS THOSE UNDER
SECTIONS 2(A)(II) AND (III) ABOVE) MAY BE MADE HEREUNDER UNTIL AFTER THE DATE
WHICH IS SIX (6) MONTHS AFTER THE PARTICIPANT'S TERMINATION OF EMPLOYMENT OR, IF