THIS AGREEMENT
TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT IF NO SUCH
SUCCESSION HAD TAKEN PLACE.
FAILURE OF THE COMPANY TO OBTAIN AN ASSUMPTION OF
THIS AGREEMENT UPON THE EFFECTIVENESS OF ANY SUCCESSION SHALL BE A BREACH OF
THIS AGREEMENT AND SHALL CONSTITUTE GOOD REASON IF THE EMPLOYEE ELECTS TO
TERMINATE EMPLOYMENT, EXCEPT THAT FOR PURPOSES OF IMPLEMENTING THE FOREGOING,
THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES EFFECTIVE SHALL BE DEEMED THE DATE
OF TERMINATION.
AS USED IN THIS AGREEMENT, "COMPANY" SHALL MEAN THE COMPANY AS
DEFINED ABOVE AND ANY SUCCESSOR TO ITS BUSINESS OR ASSETS AS AFORESAID WHICH
ASSUMES AND AGREES TO PERFORM THIS AGREEMENT, BY OPERATION OF LAW OR OTHERWISE.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF BOTH PARTIES
AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS; PROVIDED, HOWEVER, THAT THE
OBLIGATIONS OF THE EMPLOYEE ARE PERSONAL AND SHALL NOT BE ASSIGNED BY THE
EMPLOYEE.
11
16.
ACKNOWLEDGMENT.
THE EMPLOYEE STATES AND
REPRESENTS THAT HE/SHE HAS HAD AN OPPORTUNITY TO FULLY DISCUSS AND REVIEW THE
TERMS OF THIS AGREEMENT WITH AN ATTORNEY.
THE EMPLOYEE FURTHER STATES AND
REPRESENTS THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT, UNDERSTANDS THE
CONTENTS HEREIN, FREELY AND VOLUNTARILY ASSENTS TO ALL OF THE TERMS AND
CONDITIONS HEREOF, AND SIGNS HIS/HER NAME OF HIS/HER OWN FREE ACT.
THE EMPLOYEE
FURTHER ACKNOWLEDGES THAT THE LAW FIRM OF WILMERHALE IS ACTING AS COUNSEL TO THE
COMPANY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND
IS NOT ACTING AS COUNSEL FOR THE EMPLOYEE.
17.
SECTION 409A.
17.1
DISTRIBUTIONS.
SUBJECT TO THIS SECTION 17.1, ANY
PAYMENTS OR BENEFITS UNDER SECTIONS 5 AND 6 SHALL BEGIN ONLY UPON THE DATE OF A
"SEPARATION FROM SERVICE" AS DEFINED BELOW WHICH OCCURS ON OR AFTER THE DATE OF
TERMINATION UNDER SECTION 5.1 OR A CHANGE OF CONTROL TERMINATION UNDER
SECTION 6.1(C).
THE FOLLOWING RULES SHALL APPLY WITH RESPECT TO DISTRIBUTION OF
THE PAYMENTS AND BENEFITS, IF ANY, TO BE PROVIDED TO THE EMPLOYEE UNDER SECTIONS
5 AND 6:
(A)
IT IS INTENDED THAT EACH
INSTALLMENT OF THE PAYMENTS AND BENEFITS PROVIDED UNDER SECTIONS 5 AND 6 SHALL
BE TREATED AS A SEPARATE "PAYMENT" FOR PURPOSES OF SECTION 409A OF THE U.S.
INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND THE GUIDANCE ISSUED THEREUNDER
("SECTION 409A").
NEITHER THE COMPANY NOR THE EMPLOYEE SHALL HAVE THE RIGHT TO
ACCELERATE OR DEFER THE DELIVERY OF ANY SUCH PAYMENTS OR BENEFITS EXCEPT TO THE
EXTENT SPECIFICALLY PERMITTED OR REQUIRED BY SECTION 409A;
(B)
IF, AS OF THE DATE OF THE
"SEPARATION FROM SERVICE" OF THE EMPLOYEE FROM THE COMPANY (AS DEFINED BELOW),
THE EMPLOYEE IS NOT A "SPECIFIED EMPLOYEE" (WITHIN THE MEANING OF SECTION 409A),
THEN EACH INSTALLMENT OF THE PAYMENTS AND BENEFITS SHALL BE MADE ON THE DATES
AND TERMS SET FORTH IN SECTIONS 5 AND 6; AND
(C)
IF, AS OF THE DATE OF THE
"SEPARATION FROM SERVICE" OF THE EMPLOYEE FROM THE COMPANY, THE EMPLOYEE IS A
"SPECIFIED EMPLOYEE" (WITHIN