IN CONNECTION
WITH
EXECUTIVE'S TERMINATION FOR CAUSE, DEATH, DISABILITY, OR AS A RESULT OF
EXECUTIVE'S ATTAINMENT OF
RETIREMENT AGE; OR
(II)
A MATERIAL REDUCTION BY THE COMPANY IN
EXECUTIVE'S BASE SALARY BELOW THAT IN EFFECT ON THE DATE HEREOF; PROVIDED, THAT
THE BOARD MAY LOWER THE BASE SALARY TO TAKE INTO ACCOUNT A MATERIAL REDUCTION IN
THE SIZE OR COMPLEXITY OF THE COMPANY'S BUSINESS THAT OCCURS AFTER THE EFFECTIVE
DATE OF THIS AGREEMENT, ANY SUCH REDUCTIONS SHALL NOT CONSTITUTE "GOOD REASON"
FOR PURPOSES OF THIS AGREEMENT.
(III)
EXECUTIVE SHALL PROVIDE THE COMPANY WITH A
WRITTEN NOTICE DETAILING THE SPECIFIC CIRCUMSTANCES ALLEGED TO CONSTITUTE GOOD
REASON WITHIN NINETY (90) DAYS AFTER THE FIRST OCCURRENCE OF SUCH CIRCUMSTANCES,
AND ACTUALLY TERMINATE EMPLOYMENT WITHIN THIRTY (30) DAYS FOLLOWING THE
EXPIRATION OF THE COMPANY'S THIRTY (30)-DAY CURE PERIOD DESCRIBED ABOVE.
OTHERWISE, ANY CLAIM OF SUCH CIRCUMSTANCES AS "GOOD REASON" SHALL BE DEEMED
IRREVOCABLY WAIVED BY EXECUTIVE.
(H)
THE INTENT OF THE PARTIES IS THAT PAYMENTS
AND BENEFITS UNDER THIS AGREEMENT COMPLY WITH INTERNAL REVENUE CODE SECTION 409A
AND THE REGULATIONS AND GUIDANCE PROMULGATED THEREUNDER (COLLECTIVELY "CODE
SECTION 409A") AND, ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED, THIS AGREEMENT
SHALL BE INTERPRETED TO BE IN COMPLIANCE THEREWITH.
TO THE EXTENT THAT ANY
PROVISION HEREOF IS MODIFIED IN ORDER TO COMPLY WITH CODE SECTION 409A, SUCH
MODIFICATION SHALL BE MADE IN GOOD FAITH AND SHALL, TO THE MAXIMUM EXTENT
REASONABLY POSSIBLE, MAINTAIN THE ORIGINAL INTENT AND ECONOMIC BENEFIT TO
EXECUTIVE AND COMPANY OF THE APPLICABLE PROVISION WITHOUT VIOLATING THE
PROVISIONS OF CODE SECTION 409A.
IN NO EVENT WHATSOEVER SHALL COMPANY BE LIABLE
FOR ANY ADDITIONAL TAX, INTEREST OR PENALTY THAT MAY BE IMPOSED ON EXECUTIVE
6
BY CODE SECTION 409A OR FOR DAMAGES FOR FAILING TO COMPLY WITH CODE
SECTION 409A.
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 CODE
SECTION 409A AND, FOR PURPOSES OF ANY SUCH PROVISION OF THIS AGREEMENT,
REFERENCES TO A "TERMINATION," "TERMINATION OF EMPLOYMENT" OR LIKE TERMS SHALL
MEAN "SEPARATION FROM SERVICE."
IF EXECUTIVE IS DEEMED ON THE DATE OF
TERMINATION TO BE A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF THAT TERM UNDER
CODE SECTION 409A(A)(2)(B), THEN WITH REGARD TO ANY PAYMENT OR THE PROVISION OF
ANY BENEFIT THAT IS CONSIDERED DEFERRED COMPENSATION UNDER CODE SECTION 409A
PAYABLE ON ACCOUNT OF A "SEPARATION FROM SERVICE," SUCH PAYMENT OR BENEFIT SHALL
BE MADE OR PROVIDED AT THE DATE WHICH IS THE EARLIER OF (I) THE EXPIRATION OF
THE SIX (6)-MONTH PERIOD MEASURED FROM THE DATE OF SUCH "SEPARATION FROM
SERVICE" OF EXECUTIVE, AND (II) THE DATE OF EXECUTIVE'S DEATH TO THE EXTENT
REQUIRED UNDER CODE SECTION 409A.
UPON THE EXPIRATION OF THE FOREGOING DELAY
PERIOD, ALL PAYMENTS AND BENEFITS DELAYED PURSUANT TO THIS SECTION (WHETHER THEY
WOULD HAVE OTHERWISE BEEN PAYABLE IN