INJURIES PRECISELY AND THAT, IN
THE EVENT OF SUCH A BREACH OR THREAT THEREOF, THE COMPANY SHALL BE ENTITLED,
WITHOUT THE REQUIREMENT TO POST BOND OR OTHER SECURITY, TO OBTAIN A TEMPORARY
RESTRAINING ORDER AND/OR INJUNCTION RESTRAINING EXECUTIVE FROM ENGAGING IN
ACTIVITIES PROHIBITED BY THIS AGREEMENT OR SUCH OTHER RELIEF AS MAY BE REQUIRED
TO SPECIFICALLY ENFORCE ANY OF THE COVENANTS IN SECTIONS 8, 9 AND 10 OF THIS
AGREEMENT.
20.
CODE SECTION 409A COMPLIANCE.
(A)
THE INTENT OF THE PARTIES IS THAT PAYMENTS AND BENEFITS UNDER THIS
AGREEMENT COMPLY WITH, OR BE EXEMPT FROM, 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.
(B)
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 THAT ARE
CONSIDERED "NONQUALIFIED DEFERRED COMPENSATION" UNDER CODE SECTION 409A 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 THE 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 THAT IS CONSIDERED
NON-QUALIFIED 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 (A) THE EXPIRATION OF THE SIX
(6)-MONTH PERIOD MEASURED FROM THE DATE OF SUCH "SEPARATION FROM SERVICE" OF THE
EXECUTIVE, AND (B) THIRTY (30) DAYS FROM THE DATE OF THE EXECUTIVE'S DEATH (THE
"DELAY PERIOD").
UPON THE EXPIRATION OF THE DELAY PERIOD, ALL PAYMENTS AND
BENEFITS DELAYED PURSUANT TO THIS SECTION 19 (WHETHER THEY WOULD HAVE OTHERWISE
BEEN PAYABLE IN A SINGLE SUM OR IN INSTALLMENTS IN THE ABSENCE OF SUCH DELAY)
SHALL BE PAID OR REIMBURSED TO THE EXECUTIVE IN A LUMP SUM WITH INTEREST AT THE
PRIME RATE AS PUBLISHED IN THE WALL STREET JOURNAL ON THE FIRST BUSINESS DAY OF
THE DELAY PERIOD, AND ANY REMAINING PAYMENTS AND BENEFITS DUE UNDER THIS
AGREEMENT SHALL BE PAID OR PROVIDED IN ACCORDANCE WITH THE NORMAL PAYMENT DATES
SPECIFIED FOR THEM HEREIN.
12
(C)
WITH REGARD TO ANY PROVISION HEREIN THAT PROVIDES FOR REIMBURSEMENT
OF COSTS AND EXPENSES OR IN-KIND BENEFITS, EXCEPT AS PERMITTED BY CODE SECTION
409A, (I) THE RIGHT TO REIMBURSEMENT OR IN-KIND BENEFITS SHALL NOT BE SUBJECT TO
LIQUIDATION OR EXCHANGE FOR ANOTHER BENEFIT, (II) THE AMOUNT OF EXPENSES
ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND BENEFITS, PROVIDED DURING ANY TAXABLE
YEAR SHALL NOT AFFECT THE EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND
BENEFITS TO BE PROVIDED, IN ANY OTHER TAXABLE YEAR, PROVIDED THAT THE FOREGOING
CLAUSE (II) SHALL NOT