THE "CODE") AND
THE REGULATIONS PROMULGATED THEREUNDER SO AS NOT TO SUBJECT THE EXECUTIVE TO THE
PAYMENT OF INTEREST OR ANY ADDITIONAL TAX UNDER SECTION 409A OF THE CODE.
IN
FURTHERANCE THEREOF, IF PAYMENT OF ANY AMOUNT HEREUNDER THAT IS SUBJECT TO
SECTION 409A OF THE CODE AT THE TIME SPECIFIED IN THIS AGREEMENT WOULD SUBJECT
SUCH AMOUNT TO ANY ADDITIONAL TAX UNDER SECTION 409A OF THE CODE, THE PAYMENT OF
SUCH AMOUNT SHALL BE POSTPONED TO THE EARLIEST COMMENCEMENT DATE ON WHICH THE
PAYMENT OF SUCH AMOUNT COULD BE PAID WITHOUT INCURRING SUCH ADDITIONAL TAX.
IF
THE IMMEDIATELY PRECEDING SENTENCE REQUIRES A DEFERRAL OF ANY AMOUNT, ANY
PAYMENTS SO DEFERRED SHALL ACCUMULATE AND ACCRUE INTEREST, COMPOUNDED ANNUALLY,
AT THE APPLICABLE FEDERAL SHORT-
8
TERM RATE SPECIFIED UNDER SECTION 1274(D) OF THE CODE FROM THE DATE SUCH
PAYMENTS WOULD OTHERWISE HAVE BEEN MADE.
IN ADDITION, TO THE EXTENT THAT ANY
REGULATIONS OR OTHER GUIDANCE ISSUED UNDER SECTION 409A OF THE CODE (AFTER
APPLICATION OF THE PRECEDING SENTENCES OF THIS SECTION 10(A) AFTER THE DATE
HEREOF WOULD RESULT IN EXECUTIVE BEING SUBJECT TO THE PAYMENT OF INTEREST OR ANY
ADDITIONAL TAX UNDER SECTION 409A OF THE CODE, THE PARTIES HERETO AGREE, TO THE
EXTENT REASONABLY POSSIBLE, TO AMEND THIS AGREEMENT IN ORDER TO AVOID THE
IMPOSITION OF ANY SUCH INTEREST OR ADDITIONAL TAX UNDER SECTION 409A OF THE
CODE, WHICH SUCH AMENDMENT SHALL HAVE THE MINIMUM ECONOMIC EFFECT NECESSARY AND
BE REASONABLY DETERMINED IN GOOD FAITH BY THE COMPANY AND EXECUTIVE, PROVIDED
THAT IT DOES NOT MATERIALLY INCREASE THE OBLIGATION OF THE COMPANY HEREUNDER.
(B)
RETURN OF DOCUMENTS.
IN THE EVENT OF THE TERMINATION OF
EXECUTIVE'S EMPLOYMENT, EXECUTIVE SHALL DELIVER TO THE COMPANY (I) ALL PROPERTY
OF EACH OF THE COMPANY AND ITS AFFILIATES THEN IN EXECUTIVE'S POSSESSION, AND
(II) ALL DOCUMENTS AND DATA OF ANY NATURE AND IN WHATEVER MEDIUM OF EACH OF THE
COMPANY AND ITS AFFILIATES, AND EXECUTIVE SHALL NOT TAKE WITH EXECUTIVE ANY SUCH
PROPERTY, DOCUMENTS OR DATA OR ANY REPRODUCTION THEREOF, OR ANY DOCUMENTS
CONTAINING OR PERTAINING TO ANY CONFIDENTIAL INFORMATION (AS DEFINED IN THE
CONFIDENTIALITY AGREEMENT).
(C)
BINDING EFFECT; ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING ON
AND INURE TO THE BENEFIT OF THE COMPANY AND ITS RESPECTIVE SUCCESSORS AND
PERMITTED ASSIGNS.
THIS AGREEMENT SHALL ALSO BE BINDING ON AND INURE TO THE
BENEFIT OF EXECUTIVE AND EXECUTIVE'S HEIRS, EXECUTORS, ADMINISTRATORS AND LEGAL
REPRESENTATIVES.
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY ANY PARTY HERETO
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTIES HERETO, EXCEPT AS
PROVIDED PURSUANT TO THIS SECTION 10(C).
THE COMPANY MAY EFFECT SUCH AN
ASSIGNMENT WITHOUT PRIOR WRITTEN APPROVAL OF EXECUTIVE (I) UPON THE TRANSFER OF
ALL OR SUBSTANTIALLY ALL OF ITS BUSINESS AND/OR ASSETS (BY WHATEVER MEANS),
(II) TO ANY AFFILIATE OF THE COMPANY, AND (III) IN THE EVENT OF ANY MERGER,
CONSOLIDATION, AMALGAMATION, OR OTHER TRANSACTION TO WHICH THE COMPANY IS A
PARTY.
(D)
GOVERNING LAW; WAIVER OF JURY TRIAL.
(I)
GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT SHALL