SHALL THE AMOUNT PAYABLE UNDER THIS AGREEMENT BE REDUCED
PURSUANT TO THIS SECTION 11(J) TO LESS THAN THE MAXIMUM AMOUNT THAT MAY BE PAID
TO THE EXECUTIVE WITHOUT CAUSING ANY PORTION OF SUCH AMOUNT TO BECOME
NONDEDUCTIBLE
11
UNDER SECTION 280G OF THE CODE AND SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION
4999 OF THE CODE.
THE DETERMINATION OF THE EXECUTIVE'S "ANNUALIZED INCLUDIBLE
COMPENSATION FOR THE BASE PERIOD" AND THE DEDUCTIBILITY OF PAYMENTS MADE
PURSUANT TO THIS AGREEMENT SHALL BE MADE BY THE INDEPENDENT OUTSIDE ACCOUNTING
FIRM REGULARLY RETAINED BY THE COMPANY.
FOR PURPOSES OF THIS SECTION 11(J),
"PRESENT VALUE" SHALL BE DETERMINED IN ACCORDANCE WITH SECTION 280G OF THE CODE
AND THE TREASURY REGULATIONS THEREUNDER.
(K)
COORDINATION WITH SECTION 409A OF THE CODE.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY SET FORTH IN THIS SECTION 11, IN THE EVENT THAT THE
EXECUTIVE IS DETERMINED TO BE A "KEY EMPLOYEE" AS DEFINED BY SECTION 416(I) OF
THE CODE (WITHOUT REGARD TO PARAGRAPH 5), TO THE EXTENT NECESSARY TO COMPLY WITH
SECTION 409A OF THE CODE AND THE TREASURY REGULATIONS THEREUNDER, ANY PAYMENTS
OR DISTRIBUTIONS DUE THE EXECUTIVE UNDER THIS AGREEMENT AS A RESULT OF OR
FOLLOWING ANY SEPARATION FROM SERVICE SHALL NOT BE MADE BEFORE THE DATE WHICH IS
6 MONTHS AFTER THE DATE OF SEPARATION FROM SERVICE (OR IF EARLIER, THE DATE OF
DEATH OF THE EXECUTIVE).
12.
SURVIVAL. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
NOTWITHSTANDING THE TERMINATION OF THIS AGREEMENT OR THE EXECUTIVE'S EMPLOYMENT
FOR ANY REASON, THE EXECUTIVE'S OBLIGATIONS UNDER SECTIONS 2(B), 7, 8, AND 9
HEREOF SHALL SURVIVE AND REMAIN IN FULL FORCE AND EFFECT FOR THE PERIODS THEREIN
PROVIDED, AND THE PROVISIONS FOR EQUITABLE RELIEF AGAINST THE EXECUTIVE IN
SECTION 10 HEREOF SHALL CONTINUE IN FORCE, ALONG WITH THE PROVISIONS OF SECTIONS
11(K) THROUGH 20 HEREOF.
IN ADDITION, THE OBLIGATIONS OF THE COMPANY SET FORTH
IN SECTION 11 SHALL SURVIVE ANY TERMINATION (AS APPLICABLE) AND SHALL REMAIN IN
FULL FORCE AND EFFECT UNTIL SUCH OBLIGATIONS ARE SATISFIED IN FULL (SUBJECT, AS
APPLICABLE, TO THE EXECUTIVE'S COMPLIANCE WITH THE PROVISIONS OF SECTION11(I)).
13.
ASSIGNMENT.
ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
RESPECTIVE HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL REPRESENTATIVES, SUCCESSORS
AND ASSIGNS OF THE PARTIES HERETO, EXCEPT THAT THE DUTIES AND RESPONSIBILITIES
OF THE EXECUTIVE HEREUNDER ARE OF A PERSONAL NATURE AND SHALL NOT BE ASSIGNABLE
OR DELEGATABLE IN WHOLE OR IN PART BY THE EXECUTIVE.
14.
MODIFICATION.
THIS AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, SUPERSEDES ALL
EXISTING AGREEMENTS BETWEEN THEM CONCERNING SUCH SUBJECT MATTER, AND MAY BE
MODIFIED ONLY BY A WRITTEN INSTRUMENT DULY EXECUTED BY EACH PARTY.
15.
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS REQUIRED OR
PERMITTED HEREUNDER OR NECESSARY OR CONVENIENT IN CONNECTION HEREWITH SHALL BE
IN WRITING AND SHALL BE DEEMED TO HAVE BEEN GIVEN WHEN HAND DELIVERED OR THREE
(3) DAYS AFTER BEING MAILED BY