OF SUCH SEVERANCE
BENEFITS MAY BE TAXABLE UNDER SECTION 4999 OF THE CODE.
(IV)
GENERAL 280G.
UNLESS THE COMPANY AND EMPLOYEE OTHERWISE AGREE IN
WRITING, ANY DETERMINATION REQUIRED UNDER THIS SECTION 4.5(D) WILL BE MADE IN
WRITING BY A NATIONAL "BIG FOUR" ACCOUNTING FIRM SELECTED BY THE COMPANY OR SUCH
OTHER PERSON OR ENTITY TO WHICH THE PARTIES MUTUALLY AGREE (THE "ACCOUNTANTS"),
WHOSE DETERMINATION WILL BE CONCLUSIVE AND BINDING UPON EMPLOYEE AND THE COMPANY
FOR ALL PURPOSES.
FOR PURPOSES OF MAKING THE CALCULATIONS REQUIRED BY THIS
SECTION 4.5(D) THE ACCOUNTANTS MAY MAKE REASONABLE ASSUMPTIONS AND
APPROXIMATIONS CONCERNING APPLICABLE TAXES AND MAY RELY ON REASONABLE, GOOD
FAITH INTERPRETATIONS CONCERNING THE APPLICATION OF SECTIONS 280G AND 4999 OF
THE CODE.
THE COMPANY AND THE PARTICIPANTS SHALL FURNISH TO THE ACCOUNTANTS
SUCH INFORMATION AND DOCUMENTS AS THE ACCOUNTANTS MAY REASONABLY REQUEST IN
ORDER TO MAKE A DETERMINATION UNDER THIS SECTION.
THE COMPANY SHALL BEAR ALL
COSTS THE ACCOUNTANTS MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS
CONTEMPLATED BY THIS SECTION 4.5(D)(III) ANY REDUCTION IN PAYMENTS AND/OR
BENEFITS REQUIRED BY THIS SECTION4.5(D) SHALL OCCUR IN THE FOLLOWING ORDER:
(1) REDUCTION OF CASH PAYMENTS; AND (2) REDUCTION OF EQUITY ACCELERATION
(FULL-VALUE AWARDS FIRST, THEN STOCK OPTIONS), AND (3) OTHER BENEFITS PAID TO
EXECUTIVE.
IN THE EVENT THAT ACCELERATION OF VESTING OF EQUITY AWARDS IS TO BE
REDUCED, SUCH ACCELERATION OF VESTING SHALL BE CANCELLED IN THE REVERSE ORDER OF
THE DATE OF GRANT FOR EXECUTIVE'S EQUITY AWARDS.
7
(E)
INTERNAL REVENUE CODE SECTION 409A.
(I)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS PLAN, IF PARTICIPANT
IS A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF SECTION 409A OF THE CODE, AND
THE FINAL REGULATIONS AND ANY GUIDANCE PROMULGATED THEREUNDER ("SECTION 409A")
AT THE TIME OF PARTICIPANT'S SEPARATION FROM SERVICE (AS SUCH TERM IS DEFINED IN
SECTION 409A), THEN THE CASH SEVERANCE BENEFITS PAYABLE TO PARTICIPANT UNDER
THIS AGREEMENT, IF ANY, AND ANY OTHER SEVERANCE PAYMENTS OR SEPARATION BENEFITS
THAT MAY BE CONSIDERED DEFERRED COMPENSATION UNDER SECTION 409A (TOGETHER, THE
"DEFERRED COMPENSATION SEPARATION BENEFITS") OTHERWISE DUE TO PARTICIPANT ON OR
WITHIN THE SIX (6) MONTH PERIOD FOLLOWING PARTICIPANT'S SEPARATION FROM SERVICE
SHALL ACCRUE DURING SUCH SIX (6) MONTH PERIOD AND SHALL BECOME PAYABLE IN A LUMP
SUM PAYMENT ON THE DATE SIX (6) MONTHS AND ONE (1) DAY FOLLOWING THE DATE OF
PARTICIPANT'S SEPARATION FROM SERVICE.
ALL SUBSEQUENT PAYMENTS, IF ANY, SHALL
BE PAYABLE IN ACCORDANCE WITH THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR
BENEFIT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF PARTICIPANT DIES
FOLLOWING HIS SEPARATION FROM SERVICE BUT PRIOR TO THE SIX (6) MONTH ANNIVERSARY
OF HIS DATE OF SEPARATION FROM SERVICE, THEN ANY PAYMENTS DELAYED IN ACCORDANCE
WITH THIS SECTION SHALL BE PAYABLE IN A LUMP SUM AS SOON AS ADMINISTRATIVELY
PRACTICABLE AFTER THE DATE OF PARTICIPANT'S DEATH AND ALL OTHER DEFERRED
COMPENSATION SEPARATION BENEFITS SHALL BE PAYABLE IN ACCORDANCE WITH THE PAYMENT
SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
(F)
IT IS THE INTENT OF THIS AGREEMENT TO COMPLY WITH THE REQUIREMENTS