HEREIN, AND THAT EXECUTIVE IS RELYING
ONLY UPON EXECUTIVE'S OWN JUDGMENT AND ANY ADVICE PROVIDED BY EXECUTIVE'S
ATTORNEY.
14. COOPERATION. EXECUTIVE AGREES THAT, UPON REASONABLE NOTICE AND WITHOUT THE
NECESSITY OF THE COMPANY OBTAINING A SUBPOENA OR COURT ORDER, EXECUTIVE SHALL
PROVIDE REASONABLE COOPERATION IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING
(OR ANY APPEAL FROM ANY SUIT, ACTION OR PROCEEDING), AND ANY INVESTIGATION
AND/OR DEFENSE OF ANY CLAIMS ASSERTED AGAINST THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES, WHICH RELATES TO EVENTS OCCURRING DURING EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES AS TO WHICH
EXECUTIVE MAY HAVE RELEVANT INFORMATION (INCLUDING BUT NOT LIMITED TO FURNISHING
RELEVANT INFORMATION AND MATERIALS TO THE COMPANY OR ITS DESIGNEE AND/OR
PROVIDING TESTIMONY AT DEPOSITIONS AND AT TRIAL). WITH RESPECT TO SUCH
COOPERATION OCCURRING FOLLOWING TERMINATION OF EMPLOYMENT, THE COMPANY SHALL
COMPENSATE EXECUTIVE AT A REASONABLE PER DIEM RATE TO BE MUTUALLY AGREED (OTHER
THAN WITH REGARD TO ACTUAL TESTIMONY), AS WELL AS REIMBURSE EXECUTIVE, ON AN
AFTER-TAX BASIS, FOR EXPENSES REASONABLY INCURRED IN CONNECTION THEREWITH,
INCLUDING LEGAL FEES, PROVIDED THAT ANY SUCH COOPERATION OCCURRING AFTER THE
TERMINATION OF EXECUTIVE'S EMPLOYMENT SHALL BE SCHEDULED TO THE EXTENT
REASONABLY PRACTICABLE SO AS NOT TO UNREASONABLY INTERFERE WITH EXECUTIVE'S
BUSINESS OR PERSONAL AFFAIRS.
15. WITHHOLDING. THE COMPANY MAY DEDUCT AND WITHHOLD FROM ANY AMOUNTS PAYABLE
UNDER THIS AGREEMENT SUCH FEDERAL, STATE, LOCAL, FOREIGN OR OTHER TAXES AS ARE
REQUIRED OR PERMITTED TO BE WITHHELD PURSUANT TO ANY APPLICABLE LAW OR
REGULATION.
16. SECTION 409A OF THE CODE. (A)
IT IS INTENDED THAT THE PROVISIONS OF THIS
AGREEMENT COMPLY WITH SECTION 409A, AND ALL PROVISIONS OF THIS AGREEMENT SHALL
BE CONSTRUED IN A MANNER CONSISTENT WITH THE REQUIREMENTS FOR AVOIDING TAXES OR
PENALTIES UNDER SECTION 409A. IF ANY PROVISION OF THIS AGREEMENT (OR OF ANY
AWARD OF COMPENSATION, INCLUDING EQUITY COMPENSATION OR BENEFITS) WOULD CAUSE
EXECUTIVE TO INCUR ANY ADDITIONAL TAX OR INTEREST UNDER SECTION 409A, THE
COMPANY SHALL, AFTER CONSULTING WITH EXECUTIVE, REFORM SUCH PROVISION TO COMPLY
WITH SECTION 409A, PROVIDED THAT THE COMPANY AGREES TO MAINTAIN, TO THE MAXIMUM
EXTENT PRACTICABLE, THE ORIGINAL INTENT AND ECONOMIC BENEFIT TO EXECUTIVE OF THE
APPLICABLE PROVISION WITHOUT VIOLATING THE PROVISIONS OF SECTION 409A. THE
COMPANY SHALL TIMELY AMEND ANY PLAN OR PROGRAM IN WHICH EXECUTIVE PARTICIPATES
TO BRING IT IN COMPLIANCE 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" OR "TERMINATION OF EMPLOYMENT" SHALL MEAN
SEPARATION FROM SERVICE. IF EXECUTIVE IS DEEMED ON THE DATE OF TERMINATION OF
HER EMPLOYMENT TO BE A "SPECIFIED EMPLOYEE", WITHIN THE MEANING OF THAT TERM
UNDER SECTION 409A(A)(2)(B) OF THE CODE AND USING THE IDENTIFICATION METHODOLOGY
SELECTED BY THE