WILL BE GOVERNED BY THE TERMS OF SUCH AWARDS AND
SUCH EQUITY PLAN.
ANY EQUITY-BASED COMPENSATION AWARDS GRANTED TO EXECUTIVE BY
6
COMPANY UNDER AN EQUITY PLAN THAT ARE UNVESTED ON TERMINATION OF EMPLOYMENT WILL
EXPIRE, UNLESS OTHERWISE PROVIDED IN SUCH AWARDS OR SUCH EQUITY PLAN.
FOLLOWING
HIS OR HER TERMINATION OF EMPLOYMENT, COMPANY WILL NOT GRANT EXECUTIVE ANY
EQUITY-BASED COMPENSATION AWARDS.
(E)
401(K) PLAN.
THE TERMS OF THE 401(K) PLAN WILL GOVERN EXECUTIVE'S
ACCOUNT BALANCE, IF ANY, UNDER SUCH 401(K) PLAN.
1.7
CODE SECTION 409A.
(A)
IT IS THE INTENTION OF COMPANY AND EXECUTIVE THAT THE PROVISIONS
OF THIS AGREEMENT COMPLY WITH SECTION 409A OF THE CODE AND THE RULES,
REGULATIONS AND OTHER AUTHORITIES PROMULGATED THEREUNDER (INCLUDING THE
TRANSITION RULES THEREOF) (COLLECTIVELY, "409A"), AND ALL PROVISIONS OF THIS
AGREEMENT WILL BE CONSTRUED AND INTERPRETED IN A MANNER CONSISTENT WITH 409A.
(B)
TO THE EXTENT EXECUTIVE IS A "SPECIFIED EMPLOYEE," AS DEFINED IN
SECTION 409A(A)(2)(B)(I) OF THE CODE AND AS DETERMINED IN GOOD FAITH BY COMPANY,
NOTWITHSTANDING THE TIMING OF PAYMENT PROVIDED IN ANY OTHER SECTION OF THIS
AGREEMENT, NO PAYMENT, DISTRIBUTION OR BENEFIT UNDER THIS AGREEMENT THAT
CONSTITUTES A DISTRIBUTION OF DEFERRED COMPENSATION (WITHIN THE MEANING OF
TREASURY REGULATION SECTION 1.409A-1(B)) UPON SEPARATION FROM SERVICE (WITHIN
THE MEANING OF TREASURY REGULATION SECTION 1.409A-1(H)), AFTER TAKING INTO
ACCOUNT ALL AVAILABLE EXEMPTIONS THAT WOULD OTHERWISE BE PAYABLE DURING THE
SIX-MONTH PERIOD AFTER SEPARATION FROM SERVICE WILL BE MADE DURING SUCH
SIX-MONTH PERIOD, AND ANY SUCH PAYMENT, DISTRIBUTION OR BENEFIT WILL INSTEAD BE
PAID ON THE FIRST BUSINESS DAY AFTER SUCH SIX-MONTH PERIOD.
(C)
IN THE EVENT THAT COMPANY DETERMINES THAT ANY PROVISION OF THIS
AGREEMENT DOES NOT COMPLY WITH 409A, COMPANY WILL BE ENTITLED (BUT WILL HAVE NO
OBLIGATION) WITHOUT EXECUTIVE'S CONSENT, TO AMEND OR MODIFY SUCH PROVISION TO
COMPLY WITH 409A; PROVIDED, HOWEVER, THAT SUCH AMENDMENT OR MODIFICATION WILL,
TO THE GREATEST EXTENT COMMERCIALLY PRACTICABLE, MAINTAIN THE ECONOMIC VALUE TO
EXECUTIVE OF SUCH PROVISION.
(D)
FOR PURPOSES OF 409A, EACH INSTALLMENT OF SEVERANCE PAY UNDER
SECTIONS 1.1(A), 1.3(A) AND 1.4(A) WILL BE DEEMED TO BE A SEPARATE PAYMENT AS
PERMITTED UNDER TREASURY REGULATION SECTION 1.409A-2(B)(2)(III).
(E)
EXCEPT AS PERMITTED BY SECTION 409A, THE CONTINUED BENEFITS
PROVIDED TO EXECUTIVE PURSUANT TO THIS AGREEMENT DURING ANY CALENDAR YEAR WILL
NOT AFFECT THE CONTINUED BENEFITS PROVIDED TO EXECUTIVE IN ANY OTHER CALENDAR
YEAR, AND THE AMOUNT OF ANY COSTS OF PURCHASING BENEFITS REIMBURSED PURSUANT TO
THIS AGREEMENT SHALL BE PAID TO EXECUTIVE NO LATER THAN THE LAST DAY OF THE
CALENDAR YEAR FOLLOWING THE CALENDAR YEAR IN WHICH SUCH COSTS ARE INCURRED BY
EXECUTIVE.
(F)
NEITHER EXECUTIVE NOR ANY CREDITOR OR BENEFICIARY OF EXECUTIVE
WILL HAVE THE RIGHT TO SUBJECT ANY DEFERRED COMPENSATION (WITHIN THE MEANING OF
SECTION 409A) PAYABLE UNDER THIS AGREEMENT OR UNDER ANY OTHER PLAN, POLICY,
ARRANGEMENT OR AGREEMENT OF OR WITH COMPANY OR ANY AFFILIATE THEREOF (THIS
AGREEMENT AND SUCH OTHER PLANS, POLICIES, ARRANGEMENTS AND AGREEMENTS, THE
"COMPANY PLANS") TO ANY ANTICIPATION, ALIENATION, SALE, TRANSFER, ASSIGNMENT,
PLEDGE, ENCUMBRANCE,