Executive is a "specified employee" within the meaning of Section 409A of the
Code and any final regulations and
2
GUIDANCE PROMULGATED THEREUNDER ("SECTION 409A") AT THE TIME OF EXECUTIVE'S
TERMINATION, THEN ONLY THAT PORTION OF THE SEVERANCE PAYABLE TO EXECUTIVE
PURSUANT TO THIS AGREEMENT (OTHER THAN DUE TO DEATH), IF ANY, AND ANY OTHER
SEVERANCE PAYMENTS OR SEPARATION BENEFITS WHICH MAY BE CONSIDERED DEFERRED
COMPENSATION UNDER SECTION 409A (TOGETHER, THE "DEFERRED COMPENSATION SEPARATION
BENEFITS"), WHICH (WHEN CONSIDERED TOGETHER) DO NOT EXCEED THE SECTION 409A
LIMIT (AS DEFINED BELOW) MAY BE MADE WITHIN THE FIRST SIX (6) MONTHS FOLLOWING
EXECUTIVE'S TERMINATION OF EMPLOYMENT IN ACCORDANCE WITH THE PAYMENT SCHEDULE
APPLICABLE TO EACH PAYMENT OR BENEFIT.
ANY PORTION OF THE DEFERRED COMPENSATION
SEPARATION BENEFITS IN EXCESS OF THE SECTION 409A LIMIT OTHERWISE DUE TO
EXECUTIVE ON OR WITHIN THE SIX (6) MONTH PERIOD FOLLOWING EXECUTIVE'S
TERMINATION WILL ACCRUE DURING SUCH SIX (6) MONTH PERIOD AND WILL BECOME PAYABLE
IN A LUMP SUM PAYMENT ON THE DATE SIX (6) MONTHS AND ONE (1) DAY FOLLOWING THE
DATE OF EXECUTIVE'S TERMINATION OF EMPLOYMENT.
ALL SUBSEQUENT DEFERRED
COMPENSATION SEPARATION BENEFITS, IF ANY, WILL BE PAYABLE IN ACCORDANCE WITH THE
PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
For these purposes "Section 409A Limit" will mean the lesser of two (2) times:
(i) Executive's annualized compensation based upon the annual rate of pay paid
to Executive during the Company's taxable year preceding the Company's taxable
year of Executive's termination of employment as determined under Treasury
Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance
issued with respect thereto; or (ii) the maximum amount that may be taken into
account under a qualified plan pursuant to Section 401(a)(17) of the Code for
the year in which Executive's employment is terminated.
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.
10.
THAT ALL PAYMENTS MADE PURSUANT TO THIS AGREEMENT WILL BE SUBJECT
TO WITHHOLDING OF APPLICABLE TAXES.
11.
THAT THIS AGREEMENT, TOGETHER WITH THE PLAN, THE EQUITY AWARD
AGREEMENTS EVIDENCING THE EQUITY AWARDS THAT WILL BE GRANTED PURSUANT TO THIS
AGREEMENT AND THE SEVERANCE AGREEMENT, REPRESENT THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE PARTIES AS TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, WHETHER WRITTEN OR ORAL.
NO WAIVER,
ALTERATION OR MODIFICATION OF ANY OF THE PROVISIONS OF THIS AGREEMENT WILL BE
BINDING, UNLESS IN WRITING AND SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF THE
PARTIES HERETO.
12.
THAT THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF