THE TIMING OF, EMPLOYEE'S TERMINATION OF EMPLOYMENT: (I) THE COMPANY SHALL PAY
THE EMPLOYEE ANY UNPAID BASE SALARY DUE FOR PERIODS PRIOR TO THE TERMINATION
DATE; (II) THE COMPANY SHALL PAY THE EMPLOYEE ALL OF THE EMPLOYEE'S ACCRUED AND
UNUSED VACATION THROUGH THE TERMINATION DATE; AND (III) FOLLOWING SUBMISSION OF
PROPER EXPENSE REPORTS BY THE EMPLOYEE, THE COMPANY SHALL REIMBURSE THE EMPLOYEE
FOR ALL EXPENSES REASONABLY AND NECESSARILY INCURRED BY THE EMPLOYEE IN
CONNECTION WITH THE BUSINESS OF THE COMPANY PRIOR TO THE TERMINATION DATE. THESE
PAYMENTS SHALL BE MADE PROMPTLY UPON TERMINATION AND WITHIN THE PERIOD OF TIME
MANDATED BY LAW.
6.
SECTION 409A. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
IF EMPLOYEE IS A "SPECIFIED EMPLOYEE" ("SPECIFIED EMPLOYEE") WITHIN THE MEANING
OF SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED AND ANY FINAL
REGULATIONS AND GUIDANCE PROMULGATED THEREUNDER ("SECTION 409A") AT THE TIME OF
EMPLOYEE'S TERMINATION, THEN THE SEVERANCE AND BENEFITS PAYABLE TO EMPLOYEE
PURSUANT TO THIS AGREEMENT (OTHER THAN DUE TO DEATH), IF ANY, AND ANY OTHER
SEVERANCE PAYMENTS OR SEPARATION BENEFITS WHICH MAY BE CONSIDERED DEFERRED
COMPENSATION UNDER SECTION 409A (TOGETHER, THE "DEFERRED COMPENSATION SEPARATION
5
BENEFITS"), WHICH ARE OTHERWISE DUE TO EMPLOYEE ON OR WITHIN THE SIX (6) MONTH
PERIOD FOLLOWING EMPLOYEE'S TERMINATION WILL ACCRUE DURING SUCH SIX (6) MONTH
PERIOD AND WILL BECOME PAYABLE IN A LUMP SUM PAYMENT ON THE DATE SIX (6) MONTHS
AND ONE (1) DAY FOLLOWING THE DATE OF EMPLOYEE'S TERMINATION OF EMPLOYMENT OR
THE DATE OF EMPLOYEE'S DEATH, IF EARLIER. ALL SUBSEQUENT DEFERRED COMPENSATION
SEPARATION BENEFITS, IF ANY, WILL BE PAYABLE IN ACCORDANCE WITH THE PAYMENT
SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT. THE FOREGOING PROVISIONS ARE
INTENDED TO COMPLY WITH THE REQUIREMENTS OF SECTION 409A SO THAT NONE OF THE
SEVERANCE PAYMENTS AND BENEFITS TO BE PROVIDED HEREUNDER WILL BE SUBJECT TO THE
ADDITIONAL TAX IMPOSED UNDER SECTION 409A, AND ANY AMBIGUITIES HEREIN WILL BE
INTERPRETED TO SO COMPLY.
7.
LIMITATION ON PAYMENTS. IN THE EVENT THAT THE SEVERANCE AND OTHER BENEFITS
PROVIDED FOR IN THIS AGREEMENT OR OTHERWISE PAYABLE TO THE EMPLOYEE
(I) CONSTITUTE "PARACHUTE PAYMENTS" WITHIN THE MEANING OF SECTION 280G OF THE
CODE, AND (II) WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE
CODE (THE "EXCISE TAX"), THEN EMPLOYEE'S BENEFITS UNDER THIS AGREEMENT SHALL BE
EITHER
(A)
DELIVERED IN FULL, OR
(B)
DELIVERED AS TO SUCH LESSER EXTENT WHICH WOULD RESULT IN NO PORTION OF
SUCH BENEFITS BEING SUBJECT TO THE EXCISE TAX, WHICHEVER OF THE FOREGOING
AMOUNTS, TAKING INTO ACCOUNT THE APPLICABLE FEDERAL, STATE AND LOCAL INCOME
TAXES AND THE EXCISE TAX, RESULTS IN THE RECEIPT BY EMPLOYEE ON AN AFTER-TAX
BASIS, OF THE GREATEST AMOUNT OF BENEFITS, NOTWITHSTANDING THAT ALL OR SOME
PORTION OF SUCH BENEFITS MAY BE TAXABLE UNDER SECTION 4999 OF THE CODE.
Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section shall be made in writing by the
Company's independent public accountants (the