INTRINSIC VALUE
ON THE TERMINATION DATE OF ANY EQUITY VESTED AT, OR UPON, SUCH TERMINATION THAT
THE EXECUTIVE FORFEITED OR DID NOT RECEIVE BECAUSE OF THE CLASSIFICATION OF THE
TERMINATION FOR CAUSE (AND THE EXECUTIVE SHALL HAVE NO RIGHT TO THE EQUITY,
WHICH SHALL BE CANCELLED UPON THE TERMINATION FOR CAUSE).
23.
REPRESENTATIONS.
THE EXECUTIVE REPRESENTS
AND WARRANTS TO THE COMPANY THAT HE HAS THE LEGAL RIGHT TO ENTER INTO THIS
AGREEMENT AND TO PERFORM ALL OF THE OBLIGATIONS ON HIS PART TO BE PERFORMED
HEREUNDER IN ACCORDANCE WITH ITS TERMS AND THAT HE IS NOT A PARTY TO ANY
AGREEMENT OR UNDERSTANDING, WRITTEN OR ORAL, WHICH COULD PREVENT HIM FORM
ENTERING INTO THIS AGREEMENT OR PERFORMING ALL OF HIS OBLIGATIONS HEREUNDER.
24.
WITHHOLDING.
THE COMPANY MAY WITHHOLD FROM
ANY AND ALL AMOUNTS PAYABLE UNDER THIS AGREEMENT SUCH FEDERAL, STATE AND LOCAL
TAXES AS MAY BE REQUIRED TO BE WITHHELD PURSUANT TO ANY APPLICABLE LAW OR
REGULATION.
25.
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, ACCORDINGLY, TO THE MAXIMUM EXTENT PERMITTED, THIS AGREEMENT
SHALL BE LIMITED, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH SUCH INTENT.
IF
THE EXECUTIVE NOTIFIES THE COMPANY (WITH SPECIFICITY AS TO THE REASON THEREFORE)
THAT THE EXECUTIVE BELIEVES THAT ANY PROVISION OF THIS AGREEMENT (OR OF ANY
AWARD OF COMPENSATION, INCLUDING EQUITY COMPENSATION OR BENEFITS) WOULD CAUSE
THE EXECUTIVE TO INCUR ANY ADDITIONAL TAX OR INTEREST UNDER CODE SECTION 409A
AND THE COMPANY CONCURS WITH SUCH BELIEF OR THE COMPANY (WITHOUT ANY OBLIGATION
WHATSOEVER TO DO SO) INDEPENDENTLY MAKES SUCH DETERMINATION, AND MODIFYING SUCH
PROVISION WOULD AVOID SUCH ADDITIONAL TAX OR INTEREST, THE COMPANY SHALL, AFTER
CONSULTING WITH THE EXECUTIVE, REFORM SUCH PROVISION TO TRY TO COMPLY WITH CODE
SECTION 409A THROUGH GOOD FAITH MODIFICATIONS TO THE MINIMUM EXTENT REASONABLY
APPROPRIATE TO CONFORM WITH CODE SECTION 409A.
TO THE EXTENT THAT ANY PROVISION
HEREOF IS MODIFIED IN ORDER TO COMPLY WITH CODE SECTION 409A, SUCH MODIFICATION
SHALL BE MADE IN GOOD FAITH AND SHALL, TO THE MAXIMUM EXTENT REASONABLY
POSSIBLE, MAINTAIN THE ORIGINAL INTENT AND ECONOMIC BENEFIT TO THE EXECUTIVE AND
THE COMPANY OF THE APPLICABLE PROVISION WITHOUT VIOLATING THE PROVISIONS OF CODE
SECTION 409A.
(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 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 PLAN, REFERENCES TO A "TERMINATION," "TERMINATION OF
EMPLOYMENT" OR LIKE TERMS SHALL MEAN SEPARATION FROM SERVICE.
NOTWITHSTANDING
ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, IF THE EXECUTIVE IS DEEMED ON
THE DATE OF HIS TERMINATION TO BE A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF
THAT TERM UNDER CODE SECTION 409A(A)(2)(B) AND USING THE IDENTIFICATION
METHODOLOGY SELECTED BY THE COMPANY FROM