PAY PLAN THAT DOES NOT PROVIDE FOR A DEFERRAL OF
COMPENSATION BY REASON OF THE APPLICATION OF TREASURY REGULATION SECTION
1.409A-1(B)(9)(III) (RELATING TO SEPARATION PAY UPON AN INVOLUNTARY SEPARATION
FROM SERVICE).
ANY INSTALLMENTS THAT QUALIFY FOR THE EXCEPTION UNDER TREASURY
12
REGULATION SECTION 1.409A-1(B)(9)(III) MUST BE PAID NO LATER THAN THE LAST DAY
OF EXECUTIVE'S SECOND TAXABLE YEAR FOLLOWING THE TAXABLE YEAR IN WHICH THE
SEPARATION FROM SERVICE OCCURS
(B)
THE DETERMINATION OF WHETHER AND WHEN EXECUTIVE'S SEPARATION FROM
SERVICE FROM THE COMPANY HAS OCCURRED SHALL BE MADE AND IN A MANNER CONSISTENT
WITH, AND BASED ON THE PRESUMPTIONS SET FORTH IN, TREASURY REGULATION
SECTION 1.409A-1(H).
SOLELY FOR PURPOSES OF THIS SECTION 4.5(B) "COMPANY" SHALL
INCLUDE ALL PERSONS WITH WHOM THE COMPANY WOULD BE CONSIDERED A SINGLE EMPLOYER
UNDER SECTION 414(B) AND 414(C) OF THE CODE.
(C)
ALL REIMBURSEMENTS AND IN-KIND BENEFITS PROVIDED UNDER THE
AGREEMENT SHALL BE MADE OR PROVIDED IN ACCORDANCE WITH THE REQUIREMENTS OF
SECTION 409A TO THE EXTENT THAT SUCH REIMBURSEMENTS OR IN-KIND BENEFITS ARE
SUBJECT TO SECTION 409A, INCLUDING, WHERE APPLICABLE, THE REQUIREMENTS THAT
(I) ANY REIMBURSEMENT IS FOR EXPENSES INCURRED DURING THE EXECUTIVE'S LIFETIME
(OR DURING A SHORTER PERIOD OF TIME SPECIFIED IN THE AGREEMENT), (II) THE AMOUNT
OF EXPENSES ELIGIBLE FOR REIMBURSEMENT DURING A CALENDAR YEAR MAY NOT AFFECT THE
EXPENSES ELIGIBLE FOR REIMBURSEMENT IN ANY OTHER CALENDAR YEAR, (III) THE
REIMBURSEMENT OF AN ELIGIBLE EXPENSE WILL BE MADE ON OR BEFORE THE LAST DAY OF
THE CALENDAR YEAR FOLLOWING THE YEAR IN WHICH THE EXPENSE IS INCURRED AND
(IV) THE RIGHT TO REIMBURSEMENT IS NOT SUBJECT TO SET OFF OR LIQUIDATION OR
EXCHANGE FOR ANY OTHER BENEFIT.
5.
DISPUTES; EXPENSES.
5.1
DISPUTES.
ALL CLAIMS BY THE EXECUTIVE FOR BENEFITS UNDER THIS
AGREEMENT SHALL BE DIRECTED TO AND DETERMINED BY THE BOARD OF DIRECTORS OF THE
COMPANY AND SHALL BE IN WRITING.
ANY REJECTION BY THE BOARD OF DIRECTORS OF A
CLAIM FOR BENEFITS UNDER THIS AGREEMENT SHALL BE DELIVERED TO THE EXECUTIVE IN
WRITING AND SHALL SET FORTH THE SPECIFIC REASONS FOR THE REJECTION AND THE
SPECIFIC PROVISIONS OF THIS AGREEMENT RELIED UPON.
5.2
EXPENSES.
SUBJECT TO SECTION 4.5, THE COMPANY AGREES TO PAY AS
INCURRED, THE EXPENSES OF ONE LAW FIRM TO REVIEW AND NEGOTIATE THIS AGREEMENT,
AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LEGAL, ACCOUNTING AND OTHER
FEES AND EXPENSES WHICH THE EXECUTIVE MAY REASONABLY INCUR AS A RESULT OF ANY
CLAIM OR CONTEST (REGARDLESS OF THE OUTCOME THEREOF) BY THE COMPANY, THE
EXECUTIVE OR OTHERS REGARDING THE VALIDITY OR ENFORCEABILITY OF, OR LIABILITY
UNDER, ANY PROVISION OF THIS AGREEMENT OR ANY GUARANTEE OF PERFORMANCE THEREOF
(INCLUDING AS A RESULT OF ANY CONTEST BY THE EXECUTIVE REGARDING THE AMOUNT OF
ANY PAYMENT OR BENEFITS PURSUANT TO THIS AGREEMENT), PLUS IN EACH CASE INTEREST
ON ANY DELAYED PAYMENT AT THE APPLICABLE RATE FOR PREJUDGMENT INTEREST THEN IN
EFFECT IN THE COMMONWEALTH OF MASSACHUSETTS.
5.3
COMPENSATION DURING A DISPUTE.
SUBJECT TO SECTION 4.5, IF RIGHTS
OF THE EXECUTIVE TO