THE BENEFITS PROVIDED TO THE EMPLOYEE BY THE DIRECTORS AND
OFFICERS INSURANCE MAINTAINED BY THE CORPORATION ON THE DATE HEREOF; PROVIDED,
HOWEVER, THAT THE BOARD MAY ELECT TO TERMINATE DIRECTORS AND OFFICERS INSURANCE
FOR ALL OFFICERS AND DIRECTORS, INCLUDING THE EMPLOYEE, IF THE BOARD DETERMINES
IN GOOD FAITH THAT SUCH INSURANCE IS NOT AVAILABLE OR IS AVAILABLE ONLY AT
UNREASONABLE EXPENSE.
22.
AMENDMENTS.
THIS AGREEMENT MAY BE AMENDED
AT ANY TIME BY MUTUAL CONSENT OF THE PARTIES HERETO, WITH ANY SUCH AMENDMENT TO
BE INVALID UNLESS IN WRITING, SIGNED BY THE CORPORATION AND THE EMPLOYEE.
23.
ENTIRE AGREEMENT.
THIS AGREEMENT AMENDS AND
RESTATES IN ITS ENTIRETY THE TERMS AND CONDITIONS OF EMPLOYEE'S EMPLOYMENT WITH
THE CORPORATION, NOTWITHSTANDING THE TERMS AND
14
CONDITIONS OF ANY PREVIOUS EMPLOYMENT AGREEMENT BETWEEN THE CORPORATION AND THE
EMPLOYEE.
THIS AGREEMENT, ALONG WITH THE CORPORATION HANDBOOK TO THE EXTENT IT
DOES NOT SPECIFICALLY CONFLICT WITH ANY PROVISION OF THIS AGREEMENT, CONTAINS
THE ENTIRE AGREEMENT AND UNDERSTANDING BY AND BETWEEN THE EMPLOYEE AND THE
CORPORATION WITH RESPECT TO THE EMPLOYMENT OF THE EMPLOYEE, AND NO
REPRESENTATIONS, PROMISES, AGREEMENTS, OR UNDERSTANDINGS, WRITTEN OR ORAL,
RELATING TO THE EMPLOYMENT OF THE EMPLOYEE BY THE CORPORATION NOT CONTAINED
HEREIN SHALL BE OF ANY FORCE OR EFFECT.
24.
BURDEN AND BENEFIT.
THIS AGREEMENT SHALL BE
BINDING UPON, AND SHALL INURE TO THE BENEFIT OF, THE CORPORATION AND EMPLOYEE,
AND THEIR RESPECTIVE HEIRS, PERSONAL AND LEGAL REPRESENTATIVES, SUCCESSORS, AND
ASSIGNS.
25.
HEADINGS.
THE VARIOUS HEADINGS IN THIS
AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND ARE NOT PART OF THE AGREEMENT.
26.
IN-KIND BENEFITS AND REIMBURSEMENTS.
NOTWITHSTANDING ANY THING TO THE CONTRARY IN THIS AGREEMENT, IN-KIND BENEFITS
AND REIMBURSEMENTS PROVIDED UNDER THIS AGREEMENT DURING ANY TAX YEAR OF THE
EMPLOYEE SHALL NOT AFFECT IN-KIND BENEFITS OR REIMBURSEMENTS TO BE PROVIDED IN
ANY OTHER TAX YEAR OF THE EMPLOYEE AND ARE NOT SUBJECT TO LIQUIDATION OR
EXCHANGE FOR ANOTHER BENEFIT.
NOTWITHSTANDING ANY THING TO THE CONTRARY IN THIS
AGREEMENT, REIMBURSEMENT REQUESTS MUST BE TIMELY SUBMITTED BY EMPLOYEE AND, IF
TIMELY SUBMITTED, REIMBURSEMENT PAYMENTS SHALL BE MADE TO THE EMPLOYEE AS SOON
AS ADMINISTRATIVELY PRACTICABLE FOLLOWING SUCH SUBMISSION, BUT IN NO EVENT LATER
THAN THE LAST DAY OF EMPLOYEE'S TAXABLE YEAR FOLLOWING THE TAXABLE YEAR IN WHICH
THE EXPENSE WAS INCURRED.
IN NO EVENT SHALL THE EMPLOYEE BE ENTITLED TO ANY
REIMBURSEMENT PAYMENTS AFTER THE LAST DAY OF EMPLOYEE'S TAXABLE YEAR FOLLOWING
THE TAXABLE YEAR IN WHICH THE
15
EXPENSE WAS INCURRED.
THIS PARAGRAPH SHALL ONLY APPLY TO IN-KIND BENEFITS AND
REIMBURSEMENTS THAT WOULD RESULT IN TAXABLE COMPENSATION INCOME TO THE EMPLOYEE.
27.
SECTION 409A; SEPARATE PAYMENTS.
THIS
AGREEMENT IS INTENDED TO BE WRITTEN, ADMINISTERED, INTERPRETED AND CONSTRUED IN
A MANNER SUCH THAT NO PAYMENT OR BENEFITS PROVIDED UNDER THE AGREEMENT BECOME
SUBJECT TO (A) THE GROSS INCOME INCLUSION SET FORTH WITHIN CODE
SECTION 409A(A)(1)(A) OR (B) THE INTEREST AND ADDITIONAL TAX SET FORTH WITHIN
CODE SECTION 409A(A)(1)(B) (TOGETHER, REFERRED TO HEREIN AS THE "SECTION 409A
PENALTIES"), INCLUDING, WHERE APPROPRIATE, THE CONSTRUCTION OF