DAMAGES, AND MONEY DAMAGES ALONE WOULD
BE AN INADEQUATE REMEDY FOR THE INJURIES SUFFERED BY THE COMPANY, AND (III) IF
THE COMPANY SEEKS INJUNCTIVE RELIEF TO ENFORCE THIS AGREEMENT, YOU WILL WAIVE
AND WILL NOT (A) ASSERT ANY DEFENSE THAT THE COMPANY HAS AN ADEQUATE REMEDY AT
LAW WITH RESPECT TO THE BREACH, OR (B) REQUIRE THAT THE COMPANY SUBMIT PROOF OF
THE ECONOMIC VALUE OF ANY TRADE SECRET OR CONFIDENTIAL INFORMATION. NOTHING
CONTAINED IN THIS AGREEMENT SHALL LIMIT THE COMPANY'S RIGHT TO ANY OTHER
REMEDIES AT LAW OR IN EQUITY.
14.
APPLICATION OF SECTION 409A OF THE CODE.
A.
TO THE EXTENT APPLICABLE, IT IS INTENDED THAT THIS AGREEMENT COMPLY
WITH THE PROVISIONS OF SECTION 409A OF THE CODE, SO AS TO PREVENT INCLUSION IN
GROSS INCOME OF ANY AMOUNTS PAYABLE OR BENEFITS PROVIDED HEREUNDER IN A TAXABLE
YEAR THAT IS PRIOR TO THE TAXABLE YEAR OR YEARS IN WHICH SUCH AMOUNTS OR
BENEFITS WOULD OTHERWISE ACTUALLY BE DISTRIBUTED, PROVIDED OR OTHERWISE MADE
AVAILABLE TO YOU.
THIS AGREEMENT SHALL BE CONSTRUED, ADMINISTERED, AND GOVERNED
IN A MANNER CONSISTENT WITH THIS INTENT AND THE FOLLOWING PROVISIONS OF THIS
SECTION SHALL CONTROL OVER ANY CONTRARY PROVISIONS OF THIS AGREEMENT.
B.
IN THE EVENT YOU ARE A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF
SECTION 409A(A)(2)(B)(I) OF THE CODE AND DELAYED PAYMENT OF ANY AMOUNT OR
COMMENCEMENT OF ANY BENEFIT UNDER THIS AGREEMENT IS REQUIRED TO AVOID A
PROHIBITED DISTRIBUTION UNDER SECTION 409A(A)(2) OF THE CODE, THEN (I) AMOUNTS
PAYABLE IN CONNECTION WITH YOUR TERMINATION OF EMPLOYMENT WILL BE DELAYED AND
PAID IN A SINGLE LUMP SUM SIX MONTHS THEREAFTER (OR IF EARLIER, THE DATE OF YOUR
DEATH) AND (II) WITH RESPECT TO MEDICAL AND WELFARE BENEFITS, YOU SHALL BE
ENTITLED TO BEAR THE COST OF SUCH BENEFITS FOR SIX MONTHS FOLLOWING SUCH
TERMINATION DATE, AFTER WHICH TIME THE COMPANY SHALL CONTINUE TO PROVIDE
8
SUCH BENEFITS FOR THE PERIOD THEY WOULD OTHERWISE HAVE BEEN PROVIDED, COMMENCING
FROM THE SIX MONTH ANNIVERSARY OF THE YOUR TERMINATION DATE.
C.
PAYMENTS AND BENEFITS HEREUNDER UPON YOUR TERMINATION OR SEVERANCE OF
EMPLOYMENT WITH THE COMPANY THAT CONSTITUTE DEFERRED COMPENSATION UNDER CODE
SECTION 409A SHALL BE PAID OR PROVIDED ONLY AT THE TIME OF A TERMINATION OF YOUR
EMPLOYMENT WHICH CONSTITUTES A "SEPARATION FROM SERVICE" WITHIN THE MEANING OF
CODE SECTION 409A (SUBJECT TO A POSSIBLE SIX-MONTH DELAY PURSUANT TO THE
SUBSECTION B ABOVE).
D.
FOR PURPOSES OF CODE SECTION 409A, THE RIGHT TO A SERIES OF PAYMENTS
UNDER THIS AGREEMENT SHALL BE TREATED AS A RIGHT TO A SERIES OF SEPARATE
PAYMENTS SO THAT EACH PAYMENT HEREUNDER IS DESIGNATED AS A SEPARATE PAYMENT FOR
PURPOSES OF CODE SECTION 409A.
E.
ALL REIMBURSEMENTS AND IN KIND BENEFITS PROVIDED UNDER THIS AGREEMENT,
SHALL BE MADE OR PROVIDED IN ACCORDANCE WITH THE REQUIREMENTS OF CODE
SECTION 409A, INCLUDING, WHERE APPLICABLE, THE REQUIREMENT THAT (I) ANY
REIMBURSEMENT IS FOR EXPENSES INCURRED DURING YOUR LIFETIME (OR DURING A SHORTER
PERIOD OF TIME SPECIFIED IN THIS AGREEMENT), (II) THE AMOUNT OF