the Corporation determines that the Eligible
Executive is a "specified employee" under Section 409A(a)(2)(B)(i) of the Code
and the regulations thereunder when his or her employment terminates.
If this
Section 6 applies, it shall supersede any contrary provision of this Agreement.
To the extent that no exemption from Section 409A of the Code is available for
the benefits under Section 1, 2 or 5, such payments shall commence on the
earliest practicable date that occurs more than six months after the Eligible
Executive's employment terminates.
The severance payments or benefits that
otherwise would have been made during the first six months following the
termination date shall be paid in a lump sum on the first day of the seventh
month after the termination date.
III.
OTHER IMPORTANT INFORMATION
1.
RELEASE AND WAIVER OF CLAIMS.
ANY OTHER
PROVISION OF THIS PLAN NOTWITHSTANDING, AN ELIGIBLE EXECUTIVE SHALL NOT BE
ENTITLED TO RECEIVE ANY SEVERANCE PAYMENT, OTHER PAYMENT, OR BENEFIT UNDER THIS
PLAN UNLESS SUCH ELIGIBLE EXECUTIVE HAS EXECUTED A WAIVER OF CLAIMS AND A
GENERAL RELEASE OF ALL CLAIMS IN FAVOR OF THE CORPORATION AND ITS AFFILIATES.
SUCH RELEASE SHALL BE EXECUTED ON A FORM PROVIDED BY AND ACCEPTABLE TO THE
CORPORATION.
THE CORPORATION SHALL COMPLETE THE FORM OF RELEASE AND DELIVER IT
TO THE ELIGIBLE EXECUTIVE WITHIN 30 DAYS AFTER HIS OR HER EMPLOYMENT
TERMINATES.
THE FORM OF THE RELEASE WILL SPECIFY HOW MUCH TIME SUCH ELIGIBLE
EXECUTIVE HAS TO SIGN IT AND WHETHER THERE IS A REVOCATION PERIOD.
2.
PLAN ADMINISTRATION.
AS THE PLAN
ADMINISTRATOR, THE CORPORATION HAS FULL DISCRETIONARY AUTHORITY TO ADMINISTER
AND INTERPRET THE PLAN, INCLUDING DISCRETIONARY AUTHORITY TO DETERMINE
ELIGIBILITY FOR BENEFITS UNDER THE PLAN AND THE AMOUNT OF BENEFITS (IF ANY)
PAYABLE PER PARTICIPANT. ANY DETERMINATION BY THE PLAN ADMINISTRATOR WILL BE
FINAL AND CONCLUSIVE UPON ALL PERSONS.
THE PLAN ADMINISTRATOR HEREBY DELEGATES
TO THE CHIEF FINANCIAL OFFICER ALL OF ITS ADMINISTRATIVE DUTIES.
ACCORDINGLY,
THE CHIEF FINANCIAL OFFICER, ON BEHALF OF THE PLAN ADMINISTRATOR, HAS FULL
DISCRETIONARY AUTHORITY TO CARRY OUT ITS DELEGATED DUTIES.
ANY DETERMINATION BY
THE CHIEF FINANCIAL OFFICER WILL BE FINAL AND CONCLUSIVE UPON ALL PERSONS.
THE
CORPORATION, AS THE PLAN ADMINISTRATOR, WILL INDEMNIFY AND HOLD HARMLESS THE
CHIEF FINANCIAL OFFICER FOR CARRYING OUT THE RESPONSIBILITIES OF THE PLAN
ADMINISTRATOR; PROVIDED, HOWEVER, SUCH PERSON DOES NOT ACT WITH GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT.
3.
BENEFITS.
THE CORPORATION IS NOT
REQUIRED TO ESTABLISH A TRUST TO FUND THE PLAN.
THE BENEFITS PROVIDED UNDER
THIS PLAN ARE NOT ASSIGNABLE AND MAY BE CONDITIONED UPON YOUR
7
COMPLIANCE WITH ANY CONFIDENTIALITY AGREEMENT YOU HAVE ENTERED INTO WITH THE
CORPORATION.
4.
CLAIMS PROCEDURE.
IF YOU BELIEVE YOU
ARE INCORRECTLY DENIED A BENEFIT OR ARE ENTITLED TO A GREATER BENEFIT THAN THE
BENEFIT YOU RECEIVE UNDER THE PLAN, YOU MAY SUBMIT A SIGNED, WRITTEN APPLICATION
TO THE PLAN ADMINISTRATOR WITHIN NINETY (90) DAYS OF YOUR TERMINATION DATE OR,
IN THE CASE OF A DISPUTE INVOLVING A GROSS-UP PAYMENT, THE DATE ON WHICH A
DETERMINATION IS MADE REGARDING