TIME OF PAYMENT
OR VESTING OF ANY SUCH COMPENSATION OR BENEFITS; (D) RESULT IN A NON-EXEMPT
"PROHIBITED TRANSACTION" WITHIN THE MEANING OF SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE; (E) LIMIT OR RESTRICT THE RIGHT OF THE COMPANY TO
MERGE, AMEND OR TERMINATE ANY OF THE COMPANY BENEFIT PLANS; OR (F) RESULT
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IN THE PAYMENT OF ANY AMOUNT THAT WOULD, INDIVIDUALLY OR IN COMBINATION WITH
ANY OTHER SUCH PAYMENT, REASONABLY BE EXPECTED TO CONSTITUTE AN "EXCESS
PARACHUTE PAYMENT," AS DEFINED IN SECTION 280G(B)(1) OF THE CODE.
(VIII)
NONE OF THE COMPANY, ANY OF THE SUBSIDIARIES, OR ANY COMPANY
BENEFIT PLAN, NOR TO THE KNOWLEDGE OF THE COMPANY, ANY "DISQUALIFIED PERSON" (AS
DEFINED IN SECTION 4975 OF THE CODE) OR "PARTY IN INTEREST" (AS DEFINED IN
SECTION 3(18) OF ERISA), HAS ENGAGED IN ANY NON-EXEMPT PROHIBITED TRANSACTION
(WITHIN THE MEANING OF SECTION 4975 OF THE CODE OR SECTION 406 OF ERISA) WHICH
HAS RESULTED OR WOULD REASONABLY BE EXPECTED TO RESULT IN ANY MATERIAL LIABILITY
TO THE COMPANY AND THE SUBSIDIARIES, TAKEN AS A WHOLE. WITH RESPECT TO ANY
MATERIAL COMPANY BENEFIT PLAN (A) NO CLAIMS, ACTIONS, SUITS, DEMAND LETTERS,
JUDICIAL, ADMINISTRATIVE OR REGULATORY PROCEEDINGS, OR HEARINGS, NOTICES OF
VIOLATION, OR INVESTIGATIONS BEFORE ANY GOVERNMENTAL ENTITY (INCLUDING ANY
ADMINISTRATIVE INVESTIGATION, AUDIT OR OTHER PROCEEDING BY THE DEPARTMENT OF
LABOR OR THE IRS BUT EXCLUDING ROUTINE CLAIMS FOR BENEFITS IN THE ORDINARY
COURSE) ARE PENDING OR, TO THE KNOWLEDGE OF THE COMPANY, THREATENED, AND (B) TO
THE KNOWLEDGE OF THE COMPANY, NO EVENTS OR CONDITIONS HAVE OCCURRED OR EXIST
THAT WOULD REASONABLY BE EXPECTED TO GIVE RISE TO ANY SUCH CLAIMS, ACTIONS,
SUITS, DEMAND LETTERS, JUDICIAL, ADMINISTRATIVE OR REGULATORY PROCEEDINGS, OR
HEARINGS, NOTICES OF VIOLATION, OR INVESTIGATIONS BEFORE ANY GOVERNMENTAL
ENTITY, EXCEPT IN EACH CASE SUCH AS WOULD NOT REASONABLY BE EXPECTED TO HAVE A
COMPANY MATERIAL ADVERSE EFFECT.
(IX)
EACH "NONQUALIFIED DEFERRED COMPENSATION PLAN" (AS DEFINED IN
SECTION 409A(D)(1) OF THE CODE) OF THE COMPANY IS IN A FORM WHICH COMPLIES WITH
THE REQUIREMENTS OF CODE SECTION 409A SO THAT THE ADDITIONAL TAX (DESCRIBED IN
CODE SECTION 409A(A)(1)(B)) WILL NOT BE ASSESSED WITH RESPECT TO AMOUNTS THAT
ARE OR MAY BECOME DUE THEREUNDER. EACH COMPANY OPTION IS EXEMPT FROM BEING
CONSIDERED DEFERRED COMPENSATION FOR PURPOSES OF CODE SECTION 409A AS A RESULT
OF COMPLIANCE WITH TREASURY REGULATION SECTION 1.409A-1(B)(5)(I)(A).
(X)
EVERY OPTION ISSUED BY THE COMPANY WAS ISSUED IN COMPLIANCE WITH
THE TERMS OF THE PLAN UNDER WHICH IT WAS ISSUED AND IN COMPLIANCE WITH
APPLICABLE LAWS, RULES AND REGULATIONS, INCLUDING THE RULES AND REGULATIONS OF
NASDAQ, AND (II) HAS BEEN ACCOUNTED FOR IN ACCORDANCE WITH GAAP AND OTHERWISE
BEEN DISCLOSED ACCURATELY AND COMPLETELY AND IN ACCORDANCE WITH THE REQUIREMENTS
OF THE 1933 ACT AND THE 1934 ACT AND THE RULES AND REGULATIONS THEREUNDER,
INCLUDING RULE 402 OF REGULATION S-K, AND THE COMPANY HAS PAID, OR PROPERLY
RESERVED FOR, ALL TAXES PAYABLE WITH RESPECT TO EACH SUCH OPTION (INCLUDING THE
ISSUANCE AND EXERCISE THEREOF), AND HAS