OF THIS AGREEMENT.
BY VIRTUE OF HIS OR HER
ACCEPTANCE OF THIS AGREEMENT, THE PARTICIPANT IS DEEMED TO HAVE ACCEPTED AND
AGREED TO ALL OF THE TERMS AND CONDITIONS OF THIS AWARD AND THE PROVISIONS OF
THE PLAN, INCLUDING AS BINDING, CONCLUSIVE AND FINAL ALL DECISIONS OR
INTERPRETATIONS OF THE COMMITTEE UPON ANY QUESTIONS ARISING UNDER THE PLAN OR
THIS AWARD.
(G)
SECTION 409A.
THIS AGREEMENT, THE
PERFORMANCE SHARE UNITS AND PAYMENTS MADE PURSUANT TO THIS AGREEMENT ARE
INTENDED TO COMPLY WITH OR QUALIFY FOR AN EXEMPTION FROM THE REQUIREMENTS OF
SECTION 409A AND SHALL BE CONSTRUED CONSISTENTLY THEREWITH AND SHALL BE
INTERPRETED IN A MANNER CONSISTENT WITH THAT INTENTION.
TERMS DEFINED IN THE
AGREEMENT SHALL HAVE THE MEANINGS GIVEN SUCH TERMS UNDER SECTION 409A IF AND TO
THE EXTENT REQUIRED TO COMPLY WITH SECTION 409A.
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, THE COMPANY RESERVES THE RIGHT, TO THE EXTENT THE
COMPANY DEEMS NECESSARY OR ADVISABLE, IN ITS SOLE DISCRETION, TO UNILATERALLY
AMEND THE PLAN AND/OR THIS AGREEMENT TO ENSURE THAT ALL PERFORMANCE SHARE UNITS
ARE AWARDED IN A MANNER THAT QUALIFIES FOR EXEMPTION FROM OR COMPLIES WITH
SECTION 409A, PROVIDED, HOWEVER, THAT THE COMPANY MAKES NO UNDERTAKING TO
PRECLUDE SECTION 409A FROM APPLYING TO THIS AWARD OF PERFORMANCE SHARE UNITS.
ANY PAYMENTS DESCRIBED IN THIS SECTION 13(G) THAT ARE DUE WITHIN THE "SHORT TERM
DEFERRAL PERIOD" AS DEFINED IN SECTION 409A SHALL NOT BE TREATED AS DEFERRED
COMPENSATION UNLESS APPLICABLE LAW REQUIRES OTHERWISE.
IF AND TO THE EXTENT ANY
PORTION OF ANY PAYMENT, COMPENSATION OR OTHER BENEFIT PROVIDED TO THE
PARTICIPANT IN CONNECTION WITH HIS EMPLOYMENT TERMINATION IS DETERMINED TO
CONSTITUTE "NONQUALIFIED DEFERRED COMPENSATION" WITHIN THE MEANING OF
SECTION 409A AND THE PARTICIPANT IS A SPECIFIED EMPLOYEE AS DEFINED IN
SECTION 409A(2)(B)(I) OF THE CODE, AS DETERMINED BY THE COMPANY IN ACCORDANCE
WITH ITS PROCEDURES, BY WHICH DETERMINATION THE PARTICIPANT HEREBY AGREES THAT
HE IS BOUND, SUCH PORTION OF THE PAYMENT, COMPENSATION OR OTHER BENEFIT SHALL
NOT BE PAID BEFORE THE DAY THAT IS SIX MONTHS PLUS ONE DAY AFTER THE DATE OF
SEPARATION FROM SERVICE (AS DETERMINED UNDER SECTION 409A (THE "NEW PAYMENT
DATE")), EXCEPT AS SECTION 409A MAY THEN PERMIT.
THE AGGREGATE OF ANY PAYMENTS
THAT OTHERWISE WOULD HAVE BEEN PAID TO THE PARTICIPANT DURING THE PERIOD BETWEEN
THE DATE OF SEPARATION FROM SERVICE AND THE NEW PAYMENT DATE SHALL BE PAID TO
THE PARTICIPANT IN A LUMP SUM ON SUCH NEW PAYMENT DATE, AND ANY REMAINING
PAYMENTS WILL BE PAID ON THEIR ORIGINAL SCHEDULE. NOTWITHSTANDING THE FOREGOING,
THE COMPANY, ITS AFFILIATES, DIRECTORS, OFFICERS AND AGENTS SHALL HAVE NO
LIABILITY TO A PARTICIPANT, OR ANY OTHER PARTY, IF AN AWARD THAT IS INTENDED TO
BE EXEMPT FROM, OR COMPLIANT WITH, SECTION 409A IS NOT SO EXEMPT OR COMPLIANT,
OR FOR ANY ACTION TAKEN BY THE COMMITTEE.
12
(H)
GOVERNING LAW/CHOICE OF VENUE.
THIS
AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE