THE YEAR
FOLLOWING THE YEAR IN WHICH THE SEPARATION FROM SERVICE OCCURS.
8.
SECTION 409A OF THE INTERNAL REVENUE CODE AND SPECIFIED
EMPLOYEES.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, IF
EXECUTIVE IS DEEMED BY THE COMPANY AT THE TIME OF HIS SEPARATION FROM SERVICE TO
BE A "SPECIFIED EMPLOYEE" FOR PURPOSES OF SECTION 409A(A)(2)(B)(I) OF THE CODE,
TO THE EXTENT DELAYED COMMENCEMENT OF ANY PORTION OF THE BENEFITS TO WHICH
EXECUTIVE IS ENTITLED UNDER THIS AGREEMENT IS REQUIRED IN ORDER TO AVOID A
PROHIBITED DISTRIBUTION UNDER SECTION 409A(A)(2)(B)(I) OF THE CODE, SUCH PORTION
OF EXECUTIVE'S BENEFITS WILL NOT BE PROVIDED TO EXECUTIVE PRIOR TO THE EARLIER
OF (I) THE EXPIRATION OF THE SIX-MONTH PERIOD MEASURED FROM THE DATE OF THE
EXECUTIVE'S SEPARATION FROM SERVICE OR (II) THE DATE OF EXECUTIVE'S DEATH.
UPON
THE FIRST BUSINESS DAY FOLLOWING THE EXPIRATION OF THE APPLICABLE CODE
SECTION 409A(A)(2)(B)(I) PERIOD, ALL PAYMENTS DEFERRED PURSUANT TO THIS
SECTION 8 WILL BE PAID IN A LUMP SUM TO EXECUTIVE (OR EXECUTIVE'S ESTATE OR
BENEFICIARIES), AND ANY REMAINING PAYMENTS DUE UNDER THE AGREEMENT WILL BE PAID
AS OTHERWISE PROVIDED HEREIN.
FOR PURPOSES OF SECTION 409A OF THE CODE,
EXECUTIVE'S RIGHT TO RECEIVE THE PAYMENTS OF COMPENSATION PURSUANT TO THE
AGREEMENT WILL BE TREATED AS A RIGHT TO RECEIVE A SERIES OF SEPARATE PAYMENTS
AND ACCORDINGLY, EACH PAYMENT WILL AT ALL TIMES BE CONSIDERED A SEPARATE AND
DISTINCT PAYMENT.
9.
MISCELLANEOUS.
(A)
LEGAL FEES.
THE COMPANY WILL REIMBURSE EXECUTIVE'S REASONABLE AND
DOCUMENTED LEGAL FEES INCURRED IN CONNECTION WITH REVIEW OF THIS AGREEMENT AND
THE RELATED TERM SHEET, UP TO A MAXIMUM OF $2,000.
ANY SUCH REIMBURSEMENT WILL
BE PAID TO EXECUTIVE WITHIN 60 DAYS OF DELIVERY TO THE COMPANY OF THE
APPROPRIATE DOCUMENTATION, PROVIDED EXECUTIVE MUST DELIVER SUCH DOCUMENTATION TO
THE COMPANY NO LATER THAN JANUARY 10, 2010.
THE RIGHT TO REIMBURSEMENT SHALL
NOT BE SUBJECT TO LIQUIDATION OR EXCHANGE FOR ANOTHER BENEFIT.
(B)
TAX MATTERS.
EXECUTIVE AGREES THAT EXECUTIVE IS RESPONSIBLE FOR
ANY APPLICABLE TAXES OF ANY NATURE (INCLUDING ANY PENALTIES OR INTEREST THAT MAY
APPLY TO SUCH TAXES) THAT THE COMPANY REASONABLY DETERMINES APPLY TO ANY PAYMENT
OR EQUITY AWARD MADE TO EXECUTIVE HEREUNDER (OR ANY ARRANGEMENT CONTEMPLATED
HEREUNDER), THAT EXECUTIVE'S RECEIPT OF ANY BENEFIT HEREUNDER IS CONDITIONED ON
EXECUTIVE'S SATISFACTION OF ANY APPLICABLE WITHHOLDING OR SIMILAR OBLIGATIONS
THAT APPLY TO SUCH BENEFIT, AND THAT ANY CASH PAYMENT OWED TO EXECUTIVE
HEREUNDER WILL BE REDUCED TO SATISFY ANY SUCH WITHHOLDING OR SIMILAR OBLIGATIONS
THAT MAY APPLY THERETO.
6
(C)
SEVERABILITY.
IF ONE OR MORE PROVISIONS OF THIS AGREEMENT ARE
HELD TO BE UNENFORCEABLE UNDER APPLICABLE LAW, THE PARTIES AGREE TO RENEGOTIATE
SUCH PROVISION IN GOOD FAITH.
IN THE EVENT THAT THE PARTIES CANNOT REACH A
MUTUALLY AGREEABLE AND ENFORCEABLE REPLACEMENT FOR SUCH PROVISION, THEN (I) SUCH
PROVISION SHALL BE EXCLUDED FROM THIS AGREEMENT, (II) THE BALANCE OF THIS
AGREEMENT SHALL BE INTERPRETED AS IF SUCH PROVISION WERE SO EXCLUDED AND
(III) THE BALANCE OF THIS AGREEMENT SHALL BE ENFORCEABLE IN ACCORDANCE WITH