IS SIX MONTHS AND ONE DAY AFTER THE DATE OF THE
EXECUTIVE'S SEPARATION FROM SERVICE); AND (C) THE EFFECTIVE DATE OF A
CHANGE-IN-CONTROL, PROVIDED THAT ANY SUCH TRANSACTION OR SERIES OF TRANSACTIONS
ALSO CONSTITUTES A "CHANGE IN THE OWNERSHIP" OF THE COMPANY, A "CHANGE IN THE
EFFECTIVE CONTROL" OF THE COMPANY OR A "CHANGE IN OWNERSHIP OF A SUBSTANTIAL
PORTION OF THE ASSETS" OF THE COMPANY, EACH WITHIN THE MEANING OF SECTION 409A
OF THE CODE AND THE REGULATIONS PROMULGATED THEREUNDER.
5.
DIVIDEND EQUIVALENT RIGHTS.
IF THE
COMPANY PAYS A CASH DIVIDEND ON THE STOCK AND THE RECORD DATE FOR SUCH CASH
DIVIDEND OCCURS ON OR AFTER THE INITIAL CONTRIBUTION DATE AND PRIOR TO THE
TRIGGER DATE, THEN THE EXECUTIVE SHALL BE ENTITLED TO A PAYMENT IN CASH, ON A
CURRENT BASIS, EQUAL TO THE AMOUNT PER SHARE OF STOCK OF SUCH CASH DIVIDEND
MULTIPLIED BY THE NUMBER OF STOCK UNITS CREDITED TO THE EXECUTIVE'S ACCOUNT, AND
NOT FORFEITED PURSUANT TO SECTION 3 OF THIS AGREEMENT, AS OF THE APPLICABLE
RECORD DATE FOR SUCH CASH DIVIDEND.
6.
TERMINATION.
THIS AGREEMENT SHALL
AUTOMATICALLY TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT IMMEDIATELY
FOLLOWING THE PAYMENT OF THE DEFERRED COMPENSATION AMOUNT AND ALL OTHER AMOUNTS
DUE PURSUANT TO SECTION 5 OF THIS AGREEMENT.
7.
TRANSFERABILITY.
THIS AGREEMENT IS
PERSONAL TO THE EXECUTIVE, IS NON-ASSIGNABLE AND IS NOT TRANSFERABLE IN ANY
MANNER, BY OPERATION OF LAW OR OTHERWISE, OTHER THAN BY WILL OR THE LAWS OF
DESCENT AND DISTRIBUTION.
8.
TAX WITHHOLDING.
ALL PAYMENTS TO THE
EXECUTIVE HEREUNDER SHALL BE NET OF ANY REQUIRED FEDERAL, STATE, AND LOCAL TAX
WITHHOLDING.
9.
SECTION 409A.
THE PARTIES INTEND THAT
THIS AGREEMENT WILL BE ADMINISTERED IN ACCORDANCE WITH SECTION 409A OF THE
CODE.
TO THE EXTENT THAT ANY PROVISION OF THIS AGREEMENT IS AMBIGUOUS AS TO ITS
COMPLIANCE WITH SECTION 409A OF THE CODE, THE PROVISION SHALL BE READ IN SUCH A
MANNER SO THAT ALL PAYMENTS HEREUNDER COMPLY WITH SECTION 409A OF THE CODE.
THE
PARTIES AGREE THAT THIS AGREEMENT MAY BE AMENDED, AS REASONABLY REQUESTED BY
EITHER PARTY, AND AS MAY BE NECESSARY TO FULLY COMPLY WITH SECTION 409A OF THE
CODE AND ALL RELATED RULES AND REGULATIONS IN ORDER TO PRESERVE THE PAYMENTS AND
BENEFITS PROVIDED HEREUNDER WITHOUT ADDITIONAL COST TO EITHER PARTY.
THE
COMPANY MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO LIABILITY TO THE
EXECUTIVE OR ANY OTHER PERSON IF ANY PROVISIONS OF THIS AGREEMENT ARE DETERMINED
TO CONSTITUTE DEFERRED COMPENSATION SUBJECT TO SECTION 409A OF THE CODE BUT DO
NOT SATISFY AN EXEMPTION FROM, OR THE CONDITIONS OF, SUCH SECTION.
3
10.
SOURCE OF PAYMENTS/UNFUNDED STATUS.
THE
AGREEMENT IS INTENDED TO CONSTITUTE AN UNFUNDED PLAN.
ANY AMOUNT DUE AND
PAYABLE TO THE EXECUTIVE OR IN RESPECT OF THE STOCK UNITS PURSUANT TO THE TERMS
OF THIS AGREEMENT SHALL BE PAID SOLELY FROM THE GENERAL ASSETS OF THE COMPANY.
THE EXECUTIVE (AND HIS BENEFICIARY, IF APPLICABLE) SHALL NOT HAVE ANY INTEREST
IN ANY SPECIFIC ASSET AS A RESULT