be inadequate and agrees
that the Group shall be entitled to specific performance and injunctive and
other equitable relief in the case of any such breach or attempted breach.
11
18.
SECTION 409A COMPLIANCE.
A.
THE INTENT OF THE PARTIES IS THAT
PAYMENTS AND BENEFITS UNDER THIS AGREEMENT COMPLY WITH SECTION 409A AND,
ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED, THIS AGREEMENT SHALL BE
INTERPRETED TO BE IN COMPLIANCE THEREWITH.
TO THE EXTENT THAT ANY PROVISION
HEREOF IS MODIFIED IN ORDER TO COMPLY WITH SECTION 409A, SUCH MODIFICATION SHALL
BE MADE IN GOOD FAITH AND SHALL, TO THE MAXIMUM EXTENT REASONABLY POSSIBLE,
MAINTAIN THE ORIGINAL INTENT AND ECONOMIC BENEFIT TO EXECUTIVE AND THE COMPANY
OF THE APPLICABLE PROVISION WITHOUT VIOLATING THE PROVISIONS OF SECTION 409A.
IN NO EVENT WHATSOEVER SHALL THE COMPANY BE LIABLE FOR ANY ADDITIONAL TAX,
INTEREST OR PENALTY THAT MAY BE IMPOSED ON EXECUTIVE BY SECTION 409A OR DAMAGES
FOR FAILING TO COMPLY WITH SECTION 409A.
B.
A TERMINATION OF EMPLOYMENT SHALL NOT BE
DEEMED TO HAVE OCCURRED FOR PURPOSES OF ANY PROVISION OF THIS AGREEMENT
PROVIDING FOR THE PAYMENT OF ANY AMOUNTS OR BENEFITS UPON OR FOLLOWING A
TERMINATION OF EMPLOYMENT UNLESS SUCH TERMINATION IS ALSO A "SEPARATION FROM
SERVICE" WITHIN THE MEANING OF SECTION 409A AND, FOR PURPOSES OF ANY SUCH
PROVISION OF THIS AGREEMENT, REFERENCES TO A "TERMINATION," "TERMINATION OF
EMPLOYMENT" OR LIKE TERMS SHALL MEAN "SEPARATION FROM SERVICE."
IF EXECUTIVE IS
DEEMED ON THE DATE OF TERMINATION TO BE A "SPECIFIED EMPLOYEE" WITHIN THE
MEANING OF THAT TERM UNDER SECTION 409A(A)(2)(B), THEN WITH REGARD TO ANY
PAYMENT OR THE PROVISION OF ANY BENEFIT THAT IS CONSIDERED DEFERRED COMPENSATION
UNDER SECTION 409A PAYABLE ON ACCOUNT OF A "SEPARATION FROM SERVICE," SUCH
PAYMENT OR BENEFIT SHALL BE MADE OR PROVIDED AT THE DATE WHICH IS THE EARLIER OF
(I) THE EXPIRATION OF THE SIX (6)-MONTH PERIOD MEASURED FROM THE DATE OF SUCH
"SEPARATION FROM SERVICE" OF EXECUTIVE, AND (II) THE DATE OF EXECUTIVE'S DEATH.
UPON THE EXPIRATION OF SUCH DELAY PERIOD, ALL PAYMENTS AND BENEFITS DELAYED
PURSUANT TO THIS PARAGRAPH (WHETHER THEY WOULD HAVE OTHERWISE BEEN PAYABLE IN A
SINGLE SUM OR IN INSTALLMENTS IN THE ABSENCE OF SUCH DELAY) SHALL BE PAID OR
REIMBURSED TO EXECUTIVE IN A LUMP SUM, AND ANY REMAINING PAYMENTS AND BENEFITS
DUE UNDER THIS AGREEMENT SHALL BE PAID OR PROVIDED IN ACCORDANCE WITH THE NORMAL
PAYMENT DATES SPECIFIED FOR THEM HEREIN.
C.
NOTWITHSTANDING ANYTHING ELSE CONTAINED
HEREIN, TO THE EXTENT THAT ANY PAYMENTS OR BENEFITS ARE SUBJECT TO A RELEASE
AGREEMENT CONTEMPLATED BY PARAGRAPH 4.B(V) HEREOF AND SUCH RELEASE IS EXECUTED
AND DELIVERED AND NO LONGER SUBJECT TO REVOCATION AS PROVIDED IN SAID PARAGRAPH
4.B(V), THEN THE FOLLOWING SHALL APPLY:
(I)
TO THE EXTENT THAT ANY CASH PAYMENT OR
CONTINUING BENEFIT CONDITIONED ON THE EXECUTION OF THE RELEASE IS NOT
"NONQUALIFIED DEFERRED COMPENSATION" FOR PURPOSES OF CODE SECTION 409A, THEN
SUCH PAYMENT OR BENEFIT SHALL COMMENCE UPON THE FIRST SCHEDULED PAYMENT DATE
IMMEDIATELY FOLLOWING THE DATE THAT THE RELEASE