Executive Retirement Plan

Executive Retirement Plan

This Executive Retirement Plan is made on [AGREEMENT DATE] (the "Effective Date") between [PARTY A NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [PARTY A ADDRESS]], (the "[PARTY A ABBREVIATION]") including [PARTY A]'s Board and Committee, and certain eligible executives of [PARTY A]who have been selected and approved by the Board to participate in this plan (each one, a "Participant," and collectively "Participants"), and who have each entered into an Executive Retirement Plan Participation Agreement with [PARTY A] (each one, a "Participation Agreement").

(The capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS].)

Definitions

"Affiliate" means for either party, at the time the determination is made, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with that party.

"Beneficiary" means a Person that is entitled to receive benefits under this plan on the death of a Participant, as determined by each Participant according to section [DETERMINATION OF BENEFITS].

"Board" means [PARTY A]'s board of directors.

A "Change of Control" will be deemed to occur on the earliest of

(a) any Person becoming the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of [PARTY A] representing more than 50% of the total voting power represented by [PARTY A]'s then-outstanding voting securities,

(b) the consummation of [PARTY A]'s sale or disposition of all or substantially all of its assets,

(c) the consummation of a merger or consolidation of [PARTY A] with or into any other entity, other than a merger or consolidation which would result in the voting securities of [PARTY A] outstanding immediately prior to the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than 50% of the total voting power represented by [PARTY A]'s voting securities, such surviving entity, or its parent outstanding immediately after the merger or consolidation,

(d) if Persons who are members of [PARTY A]'s Board at the time [PARTY B]'s employment with [PARTY A] began cease for any reason to constitute at least a majority of the members of the board over a 12 month period; provided, however, that if the appointment or election (or nomination for election) of any new board member was approved or recommended by a majority vote of the members of [PARTY A]'s Board  in position at the time [PARTY B]'s employment with [PARTY A] began then still in office, such new board member will, for purposes of this agreement, be considered as a member of [PARTY A]'s board of directors at the time [PARTY B]'s employment with [PARTY A] began, but not

(e) if the event or transaction's sole purpose is to change the state of [PARTY A]'s  incorporation or to create a holding company that will be owned in substantially the same proportions by the Persons who held [PARTY A]'s securities immediately before such event or transaction.

"Code" means the Internal Revenue Code of 1986, as amended.

"Committee" means the compensation committee of the Board.

"Disability" and "Disabled" refer to a medically determinable physical or mental impairment that a qualified physician [PARTY A] designates has reviewed and confirmed existed before the Participant's Separation from Service that can be expected to result in death or to last for a continuous period of not less than [12] months so that the Participant, as a result,

is unable to engage in any substantial gainful activity, or

is or will be receiving income replacement benefits for a period of not less than three months under an accident and health plan covering Company executives.

"Early Distribution" is defined in section [PAYMENT OF BENEFITS].

"Effective Date" is defined in the introduction to this agreement.

"Eligible Employee" is defined in section [ELIGIBILITY].

"Emergency Distribution" is defined in section [PAYMENT OF BENEFITS].

"Governmental Authority" means

(a) any federal, state, local, or foreign government, and any political subdivision of any of them,

(b) any agency or instrumentality of any such government or political subdivision,

(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and

(d) any arbitrator, court or tribunal of competent jurisdiction.

"Law" means

(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.

"Normal Retirement Date" means the first day of the first month that begins after both

(a) the Participant has attained age [65], and

(b) the Participant's Separation from Service.

"Participant Account" is defined in section [ACCOUNTS].

"Pay Date" means the last day of the calendar month that is six months after the date of a Participant's Separation from Service.

"Person" includes 

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and 

(b) any individual.

"Representative" means, for any Person, that Person's directors, officers, shareholders, owners, partners, employees, subcontractors, agents, professional advisors[, in connection with the transactions contemplated in this agreement], and any other authorized representatives.

"Separation from Service" means the termination of a Participant's employment with [PARTY A] which entitles the Participant to benefits under this plan, and which constitutes a Separation from Service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended.

"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, stamp, value-added, and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.

Administration of Plan

Administered by Committee. The Committee shall be responsible for the general administration of this plan.

Committee's Discretion in Administering Plan. The Committee shall

adopt rules, regulations, and interpretations to assist it in the administration of this plan, 

determine eligibility to participate in this plan,

determine the amount of benefits payable under this plan, and

make other interpretations, including factual determinations, necessary to administer this plan.

Delegation to Agents. The Committee may employ agents and delegate its administrative obligations under this section to agents.

Consult with [PARTY A] Counsel. The Committee may consult with [PARTY A]'s legal counsel.

Committee's Binding Authority. The Committee's decisions and actions in connection with the administration, interpretation, and application of this plan, and the rules, regulations, and interpretations made under this plan will be binding on the Participants and all other Persons with an interests in this plan.

Indemnification of Committee. [PARTY A] shall indemnify the Committee and each member of the Committee against all losses, damages, expenses, or liabilities arising from the Committee's or any Committee member's action or omission in connection with administering this plan, unless the act or omission constitutes willful misconduct or gross negligence by the Committee or any of its members.

Participant Cooperation with Committee. On [PARTY A]'s or the Committee's reasonable request, Participants shall 

furnish any information reasonably necessary,

take physical examinations reasonably necessary, and

take all other action reasonably necessary to facilitate the payment of benefits under this agreement.

Contesting Denied Benefits

Submit Claim for Benefits. A Participant who believes that he or she is being denied a Retirement Benefit to which he or she is entitled under this plan (this Participant referred to as a "Claimant") may submit a written claim to the Committee for the requested benefit, including reasonable and relevant arguments for awarding the benefit.

Accept or Reject Claim. Within 60 days of receiving a Claimant's claim, the Committee shall give the Claimant written notice of the Committee's approval or denial of the claim. 

Denial of Claim. If the Committee denies a claim, it shall include in its notice of denial

the reasons for denial, including the specific provisions of this plan the rejection is based on,

a description of any additional material or information required for a successful claim, and an explanation of why it is necessary, and

an explanation of the Committee's claim review procedure.

Review of Decision  

Time Limit to Request Review. Within 60 days after receiving a rejection, or if the Committee has not responded to the claim within 60 days (or, in the case of a request in connection with a Disability, 180 days) after the Committee received the request, the Claimant may request the Committee review the claim by submitting a written request for review to the Committee.

Decision on Review. Within 60 days of receiving the request to review, the Committee shall review the claim, and deliver its final decision to the Claimant in writing, including the reasons for its decision and the specific provisions of this plan the decision is based on.

Materials on Review. The Committee shall review a reasonable amount of relevant documents, written comments, and written issues submitted by the Claimant in connection with the review.

No Right to Hearing. The Committee will not be required to grant the Claimant a hearing in connection with its review.

Extension. The Committee may extend the time for review to accommodate a hearing or other special circumstances, up to a maximum of 120 days. 

Final Decision. The Committee's decision on review will be final and binding on the Claimant.

Eligibility and Revocation of Eligibility

Eligibility. Any senior officer or other key employee of [PARTY A] will be eligible to participate in this plan (each, an "Eligible Employee") according to section [PARTICIPATION IN PLAN].

Right to Revoke. If the Committee determines that any Participant is no longer eligible to participate in this plan, the Committee shall terminate the Participant's participation in this plan.

Termination of Accruals. If the Committee terminates a Participant's participation in this plan, all accruals under this plan by or on behalf of the Participant will cease as of the date of the Committee's determination.

Participation in Plan

Participation. An Eligible Employee may participate (or re-enroll) in this plan by entering an Executive Retirement Plan Participation Agreement with [PARTY A], substantially in the form and manner of [ATTACHMENT], attached to this agreement.

Termination of Participation. A Participant's participation in this plan will cease once all amounts payable to the Participan under this plan have been paid in full.

Accounts

Separate Participant Accounts. The Committee shall maintain a separate account for each Participant, in the Participant's name (each one a "Participant Account," or to specify the account of a specific Participant, "Participant's Account").

Amounts Credited to Account. On the last day of each calendar year, [PARTY A] shall credit each Participant Account with an amount equal to 10% of the Base Salary paid to the relevant Participant during that calendar year.

Account Earnings. At the end of each calendar quarter, [PARTY A] shall credit each Participant Account with the earnings on the Participant Account, compounded quarterly.

Payment of Benefits

Election of Installments. A Participant may elect to receive their vested Participant Account in a single sum, or in annual installments over a 3, 5, 7, 10, or 15-year period, by giving written notice of the election to [PARTY A].

Elections are Final. Participants may not change their form of distribution after electing it according to paragraph [ELECTION OF INSTALLMENTS].

Distributions Made in Cash. [PARTY A] shall distribute Participant Accounts in cash.

Timing of Payments

Normal Start Date. Subject to the exceptions under the other sub-paragraphs of this paragraph [TIMING OF PAYMENTS], or if requested according to section [EARLY DISTRIBUTION OF PARTICIPANT'S ACCOUNT], [PARTY A] shall begin making benefit payments under this plan on the relevant Participant's Normal Retirement Date.

Delayed Start for Early Retirement, Death, or Change of Control. [PARTY A] shall begin paying benefits owed to a Participant due to either early retirement, or after a Separation from Service within two years after a Change of Control or the Participant's death, on or before first day of the calendar month following the occurrence of the event entitling the Participant (or Beneficiary, as the case may be) to benefits under this Plan.

Delayed Start for Separation from Service

Six-Month Delay[PARTY A] shall begin paying benefits owed to a Participant due to their Separation from Service six months after that Participant's Separation from Service.

Catch-Up Payment. On the day following the expiration of the six-month delay period, [PARTY A] shall pay the Participant a catch-up payment equal to the amount of benefits that would have been paid over the six-month delay period if not for that six-month delay period.

Installment Payments. Following the catch-up payment, [PARTY A] shall pay the remainder of the Participant's benefits in the installments the Participant elected according to paragraph [ELECTION OF INSTALLMENTS].

Delayed by Law. If the Committee reasonably determines that making a payment would violate applicable Law, [PARTY A] shall delay any payment due to a Participant (or Beneficiary, as the case may be) under this plan until the earliest date on which the Committee reasonably determines that making the payment would not violate applicable Law.

Delayed by Business Necessity. If the Committee reasonably determines that making a payment at the time specified under this plan would jeopardize [PARTY A] or its Affiliates' ability to continue as a going concern, [PARTY A] may treat that payment as if it was made on the date specified under this plan, only if [PARTY A] does actually make that payment during the first taxable year of the Participant in which making the payment would not have tat effect on [PARTY A] or its Affiliates.

Disability. If a Participant becomes Disabled before their Normal Retirement Date, [PARTY A] shall pay to that Participant their retirement benefits beginning on the first day of the month following the date that Participant is determined to be Disabled.

Payments to Minors, Incompetent Persons, or Incapable Persons

Payments Made to Guardian Instead. If [PARTY A] is required to pay a Benefit owed under this plan to a minor, to a Person declared incompetent, or to a Person incapable of handling the disposition of the property, [PARTY A] may direct payment of that benefit to that Person's guardian or legal representative.

Evidence Required by Committee. The Committee may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution.

Discharge Obligations. [PARTY A]'s payment to a guardian or legal representative under this paragraph [PAYMENTS TO MINORS, INCOMPETENT PERSONS, OR INCAPABLE PERSONS] will completely discharge [PARTY A] of all liability in connection with that benefit.

Early Distributions of Participant's Account

Emergency Distribution

Request for Emergency Distribution. A Participant may request to receive an amount from their Participant Account reasonably calculated to meet a reasonably unforeseeable emergency ("Emergency Distribution").

Good Faith Consideration. The Committee shall consider any request for an Emergency Distribution in good faith, taking into account all facts and circumstances of the Unforeseen Emergency.

Time for Emergency Distribution. If the Committee approves the Participant's request for an Emergency Distribution, [PARTY A] shall distribute the approved amount as soon as reasonably possible.

Early Distribution

Request for Early Distribution. A Participant (or Beneficiary, if applicable) may request to receive the entire vested portion of their Participant's Account or, if the payment of their benefits has already begun, the vested amounts remaining in their Participant's Account, before it would otherwise be distributed under this plan by giving the Committee written notice of their request and the reasons for their request ("Early Distribution").

Good Faith Consideration. The Committee shall consider requests for Early Distribution in good faith, taking into account all relevant facts and circumstances in connection for the Participant's reason for their request.

Time for Early Distribution. If the Committee approves the Participant's request for an Early Distribution, [PARTY A] shall distribute the approved amount as soon as reasonably possible.

Early Distribution Penalty. If the Committee approves the Participant's request for an Early Distribution, [PARTY A] shall subtract a penalty from the Participant's Account, equal to 10% of the Participant's Account immediately before the Early Distribution. 

No Partial Early Distribution. Participant's may not request an Early Distribution less than the entire vested portion of their Participant's Account or, if the payment of their benefits has already begun, the vested amounts remaining in their Participant's Account

No Further Participation. If a Participant receives an Early Distribution, that Participant will no longer be allowed to participate in this plan.

Eligible Benefits. Participants may only request Early Distributions of benefits which accrued and fully vested on or before [DATE].

Death Benefits

Death Before Normal Retirement Date. If a Participant dies before their Normal Retirement Date, [PARTY A] will not be required to pay any benefits to that Participant, or their Beneficiaries, under this section [BENEFITS].

Death On or After Normal Retirement Date. If the Participant dies on or after their Normal Retirement Date but before payments begin under section [PAYMENT OF BENEFITS], [PARTY A] shall pay any amounts that are unpaid as of the Participant's date of death to the Participant's Beneficiaries, surviving spouse, children, or estate, according to paragraph [BENEFICIARIES], at the same time those amounts would have been paid to the Participant.

No Surviving Spouse or Beneficiaries. If a Participant does not have a surviving spouse or Beneficiary, [PARTY A] shall pay the amounts in that Participant's Account to the Participant's estate, at the same time such amounts would have been paid to the Participant.

Beneficiaries

Right to Designate Beneficiaries. Each Participant may designate one or more Beneficiaries, according to procedures the Committee establishes in writing.

Procedure to Designate Beneficiaries. Participants shall designate its Beneficiary (or Beneficiaries) in a writing, submitted to the Committee using substantially the form of the [ATTACHMENT], attached to this plan, and only during the Participant's lifetime.

Change in Designation. Participants may change or remove its Beneficiary by submitting a new Beneficiary designation to the Committee, with the change or removal effective when received by the Committee.

No Beneficiary Designation. In a Participant does not make an effective Beneficiary designation, or if all designated Beneficiaries die before the Participant or before the complete distribution of the Participant's benefits, [PARTY A] shall pay the Participant's benefits to, in order of preference,

the Participant's surviving spouse,

the Participant's children (including adopted children), per stirpes, or

the Participant's estate.

Forfeiture of Benefits. [PARTY A] will not be required to pay any benefits under this plan to a Participant who terminates their employment for any reason other than retirement, becoming Disabled, or death.

Compatibility with Other Payments. The parties hereby acknowledge that 

the benefits provided for Participants and their Beneficiaries under this plan are in addition to any other benefits available to that Participant under any other plan or program is eligible to receive benefits from, and

this plan supplements, and does not supersede, modify, or amend any other plan or programs, unless otherwise specified.

Tax Withholding[PARTY A] shall withhold any Taxes required to be withheld by federal, state or local income tax Law, and other Taxes [PARTY A] is required to withhold under applicable Law.

Vesting. Subject to the forfeiture provisions in paragraph [FORFEITURE OF BENEFITS] in section [DETERMINATION OF BENEFITS], a Participant's right to receive a benefit under this plan will vest [immediately on becoming a Participant in this plan / on completion of [five] full years of service with [PARTY A]].

Termination

Conditional Right to Terminate. [PARTY A] may terminate this plan without notice to or consent of any Participant, unless termination would adversely affect a Participant's vested benefits.

Distribute Benefits on TerminationIf this plan[, or any other plan required to be aggregated with it under Section 409A of the Code,] is terminated, [PARTY A] shall 

distribute to each Participant the full amount of their Participant Account in a lump sum between the 13th month and the 24th month after the termination, or

adopt a new similar retirement plan or other arrangement that would have been required to be aggregated with this plan under Section 409A.

Termination After Change of Control. If a Change of Control happens that results in [PARTY A] paying  benefits to Participants, this plan will automatically terminate immediately after [PARTY A] pays those benefits.

General Provisions

Notices

Form of Notice. All notices and other communications between the parties must be in writing.

Method of Notice. The parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

Receipt of Notice. A notice given under this [agreement / plan] will be effective on

the other party's receipt of it, or

if mailed, on the earlier of the other party's receipt of it and the [fifth] Business Day after mailing it. 

Binding Effect. This [agreement /plan] will benefit and bind the parties and their respective heirs, successors, and permitted assigns.

Assignment

[PARTY B] Requires [PARTY A]'s Consent[PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s written consent.

[PARTY A] May Give Notice to Assign[PARTY A] may assign this agreement or any of its rights or obligations under this agreement, by giving [PARTY B] notice.

Assignment. [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s prior written consent. [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to [PARTY B],

to any subsidiary or affiliate, or

in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of [PARTY A]'s obligations.

Assignment. Neither party may assign this [agreement /plan] or any of their rights or obligations under this [agreement /plan] without the other party's written consent.

Assignment and Successors

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Successors. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.

Funding

Corporate Obligation[PARTY A][ and its Affiliates] shall be responsible for paying all benefits due under this plan.

Separate Trust to Fund Accounts[PARTY A] may establish a trust to fund the amounts credited to Participants' Accounts under this plan, provided that the assets in such trust shall be subject to the claims of the Corporation's general creditors in the event of insolvency.

Participants' Creditor Status

No Obligation on Officers or Directors[PARTY A]'s Representatives, nor its Affiliates' Representatives, will not be required to secure or guarantee in any way the payment of any benefit under this plan.

Unsecured General Creditor 

Participants and their Beneficiaries will be unsecured general creditors, with no secured or preferential rights to any [PARTY A] assets for payment of benefits under this Plan.

Any property [PARTY A] holds to generate the cash flow for benefit payments will remain [PARTY A]'s general, unpledged and unrestricted assets.

[PARTY A]'s obligations under this plan will be deemed unfunded and unsecured promises to pay money in the future.

Governing Law.

Applicable Law. This agreement will be governed by and construed in accordance with the substantive laws in force in:

the State of California, if a license to the Software is purchased when you are in the United States, Canada, or Mexico; or

Japan, if a license to the Software is purchased when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or

England, if a license to the Software is purchased when you are in any jurisdiction not described above.

Jurisdiction. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement.

United Nations Convention on Contracts. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Governing Law and Consent to Jurisdiction and Venue

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by laws of the State of [GOVERNING LAW STATE].

Consent to Jurisdiction. Each party hereby irrevocably consents to the [exclusive, non-exclusive] jurisdiction and venue of any [state or federal] court located within [VENUE COUNTY] County, State of [VENUE STATE] in connection with any matter arising out of this [agreement / plan] or the transactions contemplated under this [agreement / plan].

Consent to Service. Each party hereby irrevocably

agrees that process may be served on it in any manner authorized by the Laws of the State of [GOVERNING LAW STATE] for such Persons, and 

waives any objection which it might otherwise have to service of process under the Laws of the State of [GOVERNING LAW STATE].

Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

No Right to Employment. Nothing in this plan confers to any Participant any right to employment with [PARTY A], or otherwise interferes with [PARTY A]'s right to terminate a Participant's employment.

Severability. If any part of this [agreement /plan] is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Code Section 409A

Notice Under Section 409A. If [PARTY B] is a "specified employee" within the meaning of Code Section 409A(a)(2)(B)(i), [PARTY A] shall promptly deliver written notice to [PARTY B] advising it of the application of such Code section.

Deferment of Payment. Only if and to the extent necessary to avoid adverse personal Tax consequences to [PARTY B] under Code section 409A, [PARTY A] shall delay payments otherwise required to be made to [PARTY B] under this agreement, delayed to the earlier of

six months and one day after [PARTY B]'s Date of Termination, or

[PARTY B]'s death.

Date of Termination. For purposes of this section [CODE SECTION 409A], [PARTY B]'s "Date of Termination" will be interpreted in a manner that is consistent with the term "separation from service" as defined in Code section 409A and the Treasury Regulations under that section.

Interest of Deferment. Interest will accrue on unpaid amounts delayed under this section [CODE SECTION 409A] at the prime rate in effect at [BANK] or any successor bank commencing from the date that such amounts would otherwise have been due under the applicable provision.

Section 409A of Code

Interpreted According to Section 409A. The parties hereby acknowledge their mutual intent that this [agreement / plan] be interpreted

consistent with the requirements of the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and

to meet any applicable requirements under or exceptions from the Code, including Section 409A or the Code, and the Treasury regulations under the Code.

Administered According to Section 409A. The Committee shall use reasonable efforts to ensure this plan is administered according to and to meet any applicable requirements under or exceptions from the Code, including Section 409A of the Cod, and the Treasury Regulations under the Code.

Code Section 409A

Construction of this Agreement. The parties intend that:

this agreement will at all times be administered and the terms of this agreement will be interpreted consistent with the requirements of the Code, including Section 409A of the Code;

any benefits under this agreement will satisfy, to the greatest extent possible, the exemptions from the application of Code section 409A, provided under Treasury Regulations Sections 1.409A-1(b)(4), and 1.409A-1(b)(9); and 

to the extent not so exempt, this agreement (and any definitions under this agreement) will be construed in a manner that complies with Section 409A.

Specific Interpretations. For purposes of Code section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)):

[PARTY B]'s right to receive any installment payments under this agreement (whether severance payments, if any, or otherwise) will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under this agreement will at all times be considered a separate and distinct payment; and

a termination of employment will 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 Section 409A and, for purposes of any such provision of this agreement, references to a "resignation," "termination," "termination of employment" or like terms will mean "separation from service".

In Case of "Specified Employee" 

Defer Payments. If [PARTY A] deems that [PARTY B] is, at the time of a separation from service, a "specified employee" for purposes of Code section 409A(a)(2)(B)(i), and if any payments or benefits that [PARTY B] becomes entitled to under this agreement on account of such separation from service are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments or benefits is required in order to avoid a prohibited distribution under Code section 409A(a)(2)(B)(i) and the related adverse Taxation under Code section 409A, [PARTY A] shall not provide such payments prior to the earliest of:

the expiration of the six-month period measured from the date of separation from service;

the date of [PARTY B]'s death; or

such earlier date as permitted under Code section 409A without the imposition of adverse taxation.

Payment of Deferred Payments. On the first Business Day following the expiration of such deferment period, [PARTY A] shall pay to [PARTY B]

all payments deferred under this section [IN CASE OF "SPECIFIED EMPLOYEE"] in a lump sum,

any remaining payments due shall be paid as otherwise provided herein,

with no interest due on any amounts so deferred.

Section 409A of Code

Administered Consistent with Code. The parties hereby acknowledge their mutual intent that this agreement be administered and interpreted

consistent with the requirements of the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and

to meet any applicable requirements under or exceptions from the Code, including Section 409A or the Code, and the Treasury regulations under the Code.

Deferred Payments

Deferred Payments to Avoid Tax Consequences. If an to the extent necessary to avoid adverse personal Tax consequences to [PARTY B] under Section 409A of the Code, [PARTY A] will delay payments it is otherwise required to pay to [PARTY B] under section [SEVERANCE BENEFITS] to the earlier of (i) six months and one day after [PARTY B]'s date of termination, or (ii) [PARTY B]'s death. 

Interest on Deferment. Interest shall accrue on unpaid amounts delayed under this section at the then-current prime rate in effect at [INSERT RELEVANT BANK] or any successor bank, beginning on the date that those late amounts were due.

Date of Termination. For purposes of this section, [PARTY B]'s date of termination will be interpreted in a manner consistent with the term "separation from service" as defined in Section 409A of the Code and the Treasury Regulations under the Code.

Amendments Necessary to be Consistent with Code. If the parties determine that any compensation, benefits, or other payments owed under this agreement and intended to comply with the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and other applicable authority issued by the Internal Revenue Service, [PARTY A] and [PARTY B] shall amend this agreement, and take other actions the parties deem reasonably necessary or appropriate, to both

comply with the requirements of the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and

maintain as nearly as possible the economic terms and expectations of this agreement.

Interpretation. Each party has had adequate opportunity to review this agreement. Any interpretation of this agreement shall be made without regard to authorship or negotiation.

Interpretation

References to Specific Terms

Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States ("GAAP").

Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.

"Including." Where this agreement uses the word "including," it means "including without limitation," and where it uses the word "includes," it means "includes without limitation."

"Knowledge." Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be "to its knowledge," or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:

the then-current, actual knowledge of the directors and officers of that party, and

the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.

Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.

Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.

Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. [TIME ZONE] Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. [TIME ZONE] Time on the next Business Day.

Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.

Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of [this agreement/[SPECIFIED AGREEMENTS]] will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of [this agreement / [SPECIFIED AGREEMENTS].

Expenses. [PARTY A] shall pay all expenses in connection with administering this plan.

1.1 Effective Date. This agreement shall be binding and deemed effective when executed by all parties (the "Effective Date").

Effective Date. This agreement is made and entered into on [DATE].

Effective Date. This agreement is effective as of the [Effective Date / date shown at the top of the first page], even if any signatures are made after that date.

Amendment

Conditional Right to Amend. Subject to paragraph [EFFECT ON BENEFITS][PARTY A] may amend this plan without notice to or consent of any Participant.

Consent Required for Amendment Adversely Effecting Benefits. If [PARTY A]'s amendment would adversely affect any Participant's vested benefits, [PARTY A] may not make that amendment without the written consent of the relevant Participants.

Executive Retirement Plan

This Executive Retirement Plan is made on [AGREEMENT DATE] (the "Effective Date") between [PARTY A NAME], a [CORPORATE JURISDICTION] corporation with its principal place of business at [PARTY A ADDRESS]], (the "[PARTY A ABBREVIATION]") including [PARTY A]'s Board and Committee, and certain eligible executives of [PARTY A]who have been selected and approved by the Board to participate in this plan (each one, a "Participant," and collectively "Participants"), and who have each entered into an Executive Retirement Plan Participation Agreement with [PARTY A] (each one, a "Participation Agreement").

(The capitalized terms used in this agreement, in addition to those above, are defined in section [DEFINITIONS].)

Definitions

"Affiliate" means for either party, at the time the determination is made, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with that party.

"Beneficiary" means a Person that is entitled to receive benefits under this plan on the death of a Participant, as determined by each Participant according to section [DETERMINATION OF BENEFITS].

"Board" means [PARTY A]'s board of directors.

A "Change of Control" will be deemed to occur on the earliest of

(a) any Person becoming the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of [PARTY A] representing more than 50% of the total voting power represented by [PARTY A]'s then-outstanding voting securities,

(b) the consummation of [PARTY A]'s sale or disposition of all or substantially all of its assets,

(c) the consummation of a merger or consolidation of [PARTY A] with or into any other entity, other than a merger or consolidation which would result in the voting securities of [PARTY A] outstanding immediately prior to the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) more than 50% of the total voting power represented by [PARTY A]'s voting securities, such surviving entity, or its parent outstanding immediately after the merger or consolidation,

(d) if Persons who are members of [PARTY A]'s Board at the time [PARTY B]'s employment with [PARTY A] began cease for any reason to constitute at least a majority of the members of the board over a 12 month period; provided, however, that if the appointment or election (or nomination for election) of any new board member was approved or recommended by a majority vote of the members of [PARTY A]'s Board  in position at the time [PARTY B]'s employment with [PARTY A] began then still in office, such new board member will, for purposes of this agreement, be considered as a member of [PARTY A]'s board of directors at the time [PARTY B]'s employment with [PARTY A] began, but not

(e) if the event or transaction's sole purpose is to change the state of [PARTY A]'s  incorporation or to create a holding company that will be owned in substantially the same proportions by the Persons who held [PARTY A]'s securities immediately before such event or transaction.

"Code" means the Internal Revenue Code of 1986, as amended.

"Committee" means the compensation committee of the Board.

"Disability" and "Disabled" refer to a medically determinable physical or mental impairment that a qualified physician [PARTY A] designates has reviewed and confirmed existed before the Participant's Separation from Service that can be expected to result in death or to last for a continuous period of not less than [12] months so that the Participant, as a result,

is unable to engage in any substantial gainful activity, or

is or will be receiving income replacement benefits for a period of not less than three months under an accident and health plan covering Company executives.

"Early Distribution" is defined in section [PAYMENT OF BENEFITS].

"Effective Date" is defined in the introduction to this agreement.

"Eligible Employee" is defined in section [ELIGIBILITY].

"Emergency Distribution" is defined in section [PAYMENT OF BENEFITS].

"Governmental Authority" means

(a) any federal, state, local, or foreign government, and any political subdivision of any of them,

(b) any agency or instrumentality of any such government or political subdivision,

(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and

(d) any arbitrator, court or tribunal of competent jurisdiction.

"Law" means

(a) any law (including the common law), statute, bylaw, rule, regulation, order, ordinance, treaty, decree, judgment, and

(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.

"Normal Retirement Date" means the first day of the first month that begins after both

(a) the Participant has attained age [65], and

(b) the Participant's Separation from Service.

"Participant Account" is defined in section [ACCOUNTS].

"Pay Date" means the last day of the calendar month that is six months after the date of a Participant's Separation from Service.

"Person" includes 

(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and 

(b) any individual.

"Representative" means, for any Person, that Person's directors, officers, shareholders, owners, partners, employees, subcontractors, agents, professional advisors[, in connection with the transactions contemplated in this agreement], and any other authorized representatives.

"Separation from Service" means the termination of a Participant's employment with [PARTY A] which entitles the Participant to benefits under this plan, and which constitutes a Separation from Service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended.

"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, stamp, value-added, and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.

Administration of Plan

Administered by Committee. The Committee shall be responsible for the general administration of this plan.

Committee's Discretion in Administering Plan. The Committee shall

adopt rules, regulations, and interpretations to assist it in the administration of this plan, 

determine eligibility to participate in this plan,

determine the amount of benefits payable under this plan, and

make other interpretations, including factual determinations, necessary to administer this plan.

Delegation to Agents. The Committee may employ agents and delegate its administrative obligations under this section to agents.

Consult with [PARTY A] Counsel. The Committee may consult with [PARTY A]'s legal counsel.

Committee's Binding Authority. The Committee's decisions and actions in connection with the administration, interpretation, and application of this plan, and the rules, regulations, and interpretations made under this plan will be binding on the Participants and all other Persons with an interests in this plan.

Indemnification of Committee. [PARTY A] shall indemnify the Committee and each member of the Committee against all losses, damages, expenses, or liabilities arising from the Committee's or any Committee member's action or omission in connection with administering this plan, unless the act or omission constitutes willful misconduct or gross negligence by the Committee or any of its members.

Participant Cooperation with Committee. On [PARTY A]'s or the Committee's reasonable request, Participants shall 

furnish any information reasonably necessary,

take physical examinations reasonably necessary, and

take all other action reasonably necessary to facilitate the payment of benefits under this agreement.

Contesting Denied Benefits

Submit Claim for Benefits. A Participant who believes that he or she is being denied a Retirement Benefit to which he or she is entitled under this plan (this Participant referred to as a "Claimant") may submit a written claim to the Committee for the requested benefit, including reasonable and relevant arguments for awarding the benefit.

Accept or Reject Claim. Within 60 days of receiving a Claimant's claim, the Committee shall give the Claimant written notice of the Committee's approval or denial of the claim. 

Denial of Claim. If the Committee denies a claim, it shall include in its notice of denial

the reasons for denial, including the specific provisions of this plan the rejection is based on,

a description of any additional material or information required for a successful claim, and an explanation of why it is necessary, and

an explanation of the Committee's claim review procedure.

Review of Decision  

Time Limit to Request Review. Within 60 days after receiving a rejection, or if the Committee has not responded to the claim within 60 days (or, in the case of a request in connection with a Disability, 180 days) after the Committee received the request, the Claimant may request the Committee review the claim by submitting a written request for review to the Committee.

Decision on Review. Within 60 days of receiving the request to review, the Committee shall review the claim, and deliver its final decision to the Claimant in writing, including the reasons for its decision and the specific provisions of this plan the decision is based on.

Materials on Review. The Committee shall review a reasonable amount of relevant documents, written comments, and written issues submitted by the Claimant in connection with the review.

No Right to Hearing. The Committee will not be required to grant the Claimant a hearing in connection with its review.

Extension. The Committee may extend the time for review to accommodate a hearing or other special circumstances, up to a maximum of 120 days. 

Final Decision. The Committee's decision on review will be final and binding on the Claimant.

Eligibility and Revocation of Eligibility

Eligibility. Any senior officer or other key employee of [PARTY A] will be eligible to participate in this plan (each, an "Eligible Employee") according to section [PARTICIPATION IN PLAN].

Right to Revoke. If the Committee determines that any Participant is no longer eligible to participate in this plan, the Committee shall terminate the Participant's participation in this plan.

Termination of Accruals. If the Committee terminates a Participant's participation in this plan, all accruals under this plan by or on behalf of the Participant will cease as of the date of the Committee's determination.

Participation in Plan

Participation. An Eligible Employee may participate (or re-enroll) in this plan by entering an Executive Retirement Plan Participation Agreement with [PARTY A], substantially in the form and manner of [ATTACHMENT], attached to this agreement.

Termination of Participation. A Participant's participation in this plan will cease once all amounts payable to the Participan under this plan have been paid in full.

Accounts

Separate Participant Accounts. The Committee shall maintain a separate account for each Participant, in the Participant's name (each one a "Participant Account," or to specify the account of a specific Participant, "Participant's Account").

Amounts Credited to Account. On the last day of each calendar year, [PARTY A] shall credit each Participant Account with an amount equal to 10% of the Base Salary paid to the relevant Participant during that calendar year.

Account Earnings. At the end of each calendar quarter, [PARTY A] shall credit each Participant Account with the earnings on the Participant Account, compounded quarterly.

Payment of Benefits

Election of Installments. A Participant may elect to receive their vested Participant Account in a single sum, or in annual installments over a 3, 5, 7, 10, or 15-year period, by giving written notice of the election to [PARTY A].

Elections are Final. Participants may not change their form of distribution after electing it according to paragraph [ELECTION OF INSTALLMENTS].

Distributions Made in Cash. [PARTY A] shall distribute Participant Accounts in cash.

Timing of Payments

Normal Start Date. Subject to the exceptions under the other sub-paragraphs of this paragraph [TIMING OF PAYMENTS], or if requested according to section [EARLY DISTRIBUTION OF PARTICIPANT'S ACCOUNT], [PARTY A] shall begin making benefit payments under this plan on the relevant Participant's Normal Retirement Date.

Delayed Start for Early Retirement, Death, or Change of Control. [PARTY A] shall begin paying benefits owed to a Participant due to either early retirement, or after a Separation from Service within two years after a Change of Control or the Participant's death, on or before first day of the calendar month following the occurrence of the event entitling the Participant (or Beneficiary, as the case may be) to benefits under this Plan.

Delayed Start for Separation from Service

Six-Month Delay[PARTY A] shall begin paying benefits owed to a Participant due to their Separation from Service six months after that Participant's Separation from Service.

Catch-Up Payment. On the day following the expiration of the six-month delay period, [PARTY A] shall pay the Participant a catch-up payment equal to the amount of benefits that would have been paid over the six-month delay period if not for that six-month delay period.

Installment Payments. Following the catch-up payment, [PARTY A] shall pay the remainder of the Participant's benefits in the installments the Participant elected according to paragraph [ELECTION OF INSTALLMENTS].

Delayed by Law. If the Committee reasonably determines that making a payment would violate applicable Law, [PARTY A] shall delay any payment due to a Participant (or Beneficiary, as the case may be) under this plan until the earliest date on which the Committee reasonably determines that making the payment would not violate applicable Law.

Delayed by Business Necessity. If the Committee reasonably determines that making a payment at the time specified under this plan would jeopardize [PARTY A] or its Affiliates' ability to continue as a going concern, [PARTY A] may treat that payment as if it was made on the date specified under this plan, only if [PARTY A] does actually make that payment during the first taxable year of the Participant in which making the payment would not have tat effect on [PARTY A] or its Affiliates.

Disability. If a Participant becomes Disabled before their Normal Retirement Date, [PARTY A] shall pay to that Participant their retirement benefits beginning on the first day of the month following the date that Participant is determined to be Disabled.

Payments to Minors, Incompetent Persons, or Incapable Persons

Payments Made to Guardian Instead. If [PARTY A] is required to pay a Benefit owed under this plan to a minor, to a Person declared incompetent, or to a Person incapable of handling the disposition of the property, [PARTY A] may direct payment of that benefit to that Person's guardian or legal representative.

Evidence Required by Committee. The Committee may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution.

Discharge Obligations. [PARTY A]'s payment to a guardian or legal representative under this paragraph [PAYMENTS TO MINORS, INCOMPETENT PERSONS, OR INCAPABLE PERSONS] will completely discharge [PARTY A] of all liability in connection with that benefit.

Early Distributions of Participant's Account

Emergency Distribution

Request for Emergency Distribution. A Participant may request to receive an amount from their Participant Account reasonably calculated to meet a reasonably unforeseeable emergency ("Emergency Distribution").

Good Faith Consideration. The Committee shall consider any request for an Emergency Distribution in good faith, taking into account all facts and circumstances of the Unforeseen Emergency.

Time for Emergency Distribution. If the Committee approves the Participant's request for an Emergency Distribution, [PARTY A] shall distribute the approved amount as soon as reasonably possible.

Early Distribution

Request for Early Distribution. A Participant (or Beneficiary, if applicable) may request to receive the entire vested portion of their Participant's Account or, if the payment of their benefits has already begun, the vested amounts remaining in their Participant's Account, before it would otherwise be distributed under this plan by giving the Committee written notice of their request and the reasons for their request ("Early Distribution").

Good Faith Consideration. The Committee shall consider requests for Early Distribution in good faith, taking into account all relevant facts and circumstances in connection for the Participant's reason for their request.

Time for Early Distribution. If the Committee approves the Participant's request for an Early Distribution, [PARTY A] shall distribute the approved amount as soon as reasonably possible.

Early Distribution Penalty. If the Committee approves the Participant's request for an Early Distribution, [PARTY A] shall subtract a penalty from the Participant's Account, equal to 10% of the Participant's Account immediately before the Early Distribution. 

No Partial Early Distribution. Participant's may not request an Early Distribution less than the entire vested portion of their Participant's Account or, if the payment of their benefits has already begun, the vested amounts remaining in their Participant's Account

No Further Participation. If a Participant receives an Early Distribution, that Participant will no longer be allowed to participate in this plan.

Eligible Benefits. Participants may only request Early Distributions of benefits which accrued and fully vested on or before [DATE].

Death Benefits

Death Before Normal Retirement Date. If a Participant dies before their Normal Retirement Date, [PARTY A] will not be required to pay any benefits to that Participant, or their Beneficiaries, under this section [BENEFITS].

Death On or After Normal Retirement Date. If the Participant dies on or after their Normal Retirement Date but before payments begin under section [PAYMENT OF BENEFITS], [PARTY A] shall pay any amounts that are unpaid as of the Participant's date of death to the Participant's Beneficiaries, surviving spouse, children, or estate, according to paragraph [BENEFICIARIES], at the same time those amounts would have been paid to the Participant.

No Surviving Spouse or Beneficiaries. If a Participant does not have a surviving spouse or Beneficiary, [PARTY A] shall pay the amounts in that Participant's Account to the Participant's estate, at the same time such amounts would have been paid to the Participant.

Beneficiaries

Right to Designate Beneficiaries. Each Participant may designate one or more Beneficiaries, according to procedures the Committee establishes in writing.

Procedure to Designate Beneficiaries. Participants shall designate its Beneficiary (or Beneficiaries) in a writing, submitted to the Committee using substantially the form of the [ATTACHMENT], attached to this plan, and only during the Participant's lifetime.

Change in Designation. Participants may change or remove its Beneficiary by submitting a new Beneficiary designation to the Committee, with the change or removal effective when received by the Committee.

No Beneficiary Designation. In a Participant does not make an effective Beneficiary designation, or if all designated Beneficiaries die before the Participant or before the complete distribution of the Participant's benefits, [PARTY A] shall pay the Participant's benefits to, in order of preference,

the Participant's surviving spouse,

the Participant's children (including adopted children), per stirpes, or

the Participant's estate.

Forfeiture of Benefits. [PARTY A] will not be required to pay any benefits under this plan to a Participant who terminates their employment for any reason other than retirement, becoming Disabled, or death.

Compatibility with Other Payments. The parties hereby acknowledge that 

the benefits provided for Participants and their Beneficiaries under this plan are in addition to any other benefits available to that Participant under any other plan or program is eligible to receive benefits from, and

this plan supplements, and does not supersede, modify, or amend any other plan or programs, unless otherwise specified.

Tax Withholding[PARTY A] shall withhold any Taxes required to be withheld by federal, state or local income tax Law, and other Taxes [PARTY A] is required to withhold under applicable Law.

Vesting. Subject to the forfeiture provisions in paragraph [FORFEITURE OF BENEFITS] in section [DETERMINATION OF BENEFITS], a Participant's right to receive a benefit under this plan will vest [immediately on becoming a Participant in this plan / on completion of [five] full years of service with [PARTY A]].

Termination

Conditional Right to Terminate. [PARTY A] may terminate this plan without notice to or consent of any Participant, unless termination would adversely affect a Participant's vested benefits.

Distribute Benefits on TerminationIf this plan[, or any other plan required to be aggregated with it under Section 409A of the Code,] is terminated, [PARTY A] shall 

distribute to each Participant the full amount of their Participant Account in a lump sum between the 13th month and the 24th month after the termination, or

adopt a new similar retirement plan or other arrangement that would have been required to be aggregated with this plan under Section 409A.

Termination After Change of Control. If a Change of Control happens that results in [PARTY A] paying  benefits to Participants, this plan will automatically terminate immediately after [PARTY A] pays those benefits.

General Provisions

Notices

Form of Notice. All notices and other communications between the parties must be in writing.

Method of Notice. The parties shall give all notices and communications between the parties by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid[, (iv) fax][ or (v) electronic mail] to the party's address specified in this agreement, or to the address that a party has notified to be that party's address for the purposes of this section.

Receipt of Notice. A notice given under this [agreement / plan] will be effective on

the other party's receipt of it, or

if mailed, on the earlier of the other party's receipt of it and the [fifth] Business Day after mailing it. 

Binding Effect. This [agreement /plan] will benefit and bind the parties and their respective heirs, successors, and permitted assigns.

Assignment

[PARTY B] Requires [PARTY A]'s Consent[PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s written consent.

[PARTY A] May Give Notice to Assign[PARTY A] may assign this agreement or any of its rights or obligations under this agreement, by giving [PARTY B] notice.

Assignment. [PARTY B] may not assign this agreement or any of its rights or obligations under this agreement without [PARTY A]'s prior written consent. [PARTY A] may assign this agreement or any of its rights and obligations under this agreement, effective upon Notice to [PARTY B],

to any subsidiary or affiliate, or

in connection with any sale, transfer, or other disposition of all or substantially all of its business or assets but only if the assignee assumes all of [PARTY A]'s obligations.

Assignment. Neither party may assign this [agreement /plan] or any of their rights or obligations under this [agreement /plan] without the other party's written consent.

Assignment and Successors

Assignment. Neither party may assign this agreement or any of their rights or obligations under this agreement without the prior written consent of the other party.

Successors. This agreement benefits and binds the parties and their respective heirs, successors, and permitted assigns.

Funding

Corporate Obligation[PARTY A][ and its Affiliates] shall be responsible for paying all benefits due under this plan.

Separate Trust to Fund Accounts[PARTY A] may establish a trust to fund the amounts credited to Participants' Accounts under this plan, provided that the assets in such trust shall be subject to the claims of the Corporation's general creditors in the event of insolvency.

Participants' Creditor Status

No Obligation on Officers or Directors[PARTY A]'s Representatives, nor its Affiliates' Representatives, will not be required to secure or guarantee in any way the payment of any benefit under this plan.

Unsecured General Creditor 

Participants and their Beneficiaries will be unsecured general creditors, with no secured or preferential rights to any [PARTY A] assets for payment of benefits under this Plan.

Any property [PARTY A] holds to generate the cash flow for benefit payments will remain [PARTY A]'s general, unpledged and unrestricted assets.

[PARTY A]'s obligations under this plan will be deemed unfunded and unsecured promises to pay money in the future.

Governing Law.

Applicable Law. This agreement will be governed by and construed in accordance with the substantive laws in force in:

the State of California, if a license to the Software is purchased when you are in the United States, Canada, or Mexico; or

Japan, if a license to the Software is purchased when you are in Japan, China, Korea, or other Southeast Asian country where all official languages are written in either an ideographic script (e.g., hanzi, kanji, or hanja), and/or other script based upon or similar in structure to an ideographic script, such as hangul or kana; or

England, if a license to the Software is purchased when you are in any jurisdiction not described above.

Jurisdiction. The respective courts of Santa Clara County, California when California law applies, Tokyo District Court in Japan, when Japanese law applies, and the competent courts of London, England, when the law of England applies, shall each have non-exclusive jurisdiction over all disputes relating to this agreement.

United Nations Convention on Contracts. This agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

Governing Law and Consent to Jurisdiction and Venue

Governing Law. This agreement, and any dispute arising out of the [SUBJECT MATTER OF THE AGREEMENT], shall be governed by laws of the State of [GOVERNING LAW STATE].

Consent to Jurisdiction. Each party hereby irrevocably consents to the [exclusive, non-exclusive] jurisdiction and venue of any [state or federal] court located within [VENUE COUNTY] County, State of [VENUE STATE] in connection with any matter arising out of this [agreement / plan] or the transactions contemplated under this [agreement / plan].

Consent to Service. Each party hereby irrevocably

agrees that process may be served on it in any manner authorized by the Laws of the State of [GOVERNING LAW STATE] for such Persons, and 

waives any objection which it might otherwise have to service of process under the Laws of the State of [GOVERNING LAW STATE].

Governing Law. This agreement shall be governed, construed, and enforced in accordance with the laws of the State of [GOVERNING LAW STATE], without regard to its conflict of laws rules.

No Right to Employment. Nothing in this plan confers to any Participant any right to employment with [PARTY A], or otherwise interferes with [PARTY A]'s right to terminate a Participant's employment.

Severability. If any part of this [agreement /plan] is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.

Code Section 409A

Notice Under Section 409A. If [PARTY B] is a "specified employee" within the meaning of Code Section 409A(a)(2)(B)(i), [PARTY A] shall promptly deliver written notice to [PARTY B] advising it of the application of such Code section.

Deferment of Payment. Only if and to the extent necessary to avoid adverse personal Tax consequences to [PARTY B] under Code section 409A, [PARTY A] shall delay payments otherwise required to be made to [PARTY B] under this agreement, delayed to the earlier of

six months and one day after [PARTY B]'s Date of Termination, or

[PARTY B]'s death.

Date of Termination. For purposes of this section [CODE SECTION 409A], [PARTY B]'s "Date of Termination" will be interpreted in a manner that is consistent with the term "separation from service" as defined in Code section 409A and the Treasury Regulations under that section.

Interest of Deferment. Interest will accrue on unpaid amounts delayed under this section [CODE SECTION 409A] at the prime rate in effect at [BANK] or any successor bank commencing from the date that such amounts would otherwise have been due under the applicable provision.

Section 409A of Code

Interpreted According to Section 409A. The parties hereby acknowledge their mutual intent that this [agreement / plan] be interpreted

consistent with the requirements of the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and

to meet any applicable requirements under or exceptions from the Code, including Section 409A or the Code, and the Treasury regulations under the Code.

Administered According to Section 409A. The Committee shall use reasonable efforts to ensure this plan is administered according to and to meet any applicable requirements under or exceptions from the Code, including Section 409A of the Cod, and the Treasury Regulations under the Code.

Code Section 409A

Construction of this Agreement. The parties intend that:

this agreement will at all times be administered and the terms of this agreement will be interpreted consistent with the requirements of the Code, including Section 409A of the Code;

any benefits under this agreement will satisfy, to the greatest extent possible, the exemptions from the application of Code section 409A, provided under Treasury Regulations Sections 1.409A-1(b)(4), and 1.409A-1(b)(9); and 

to the extent not so exempt, this agreement (and any definitions under this agreement) will be construed in a manner that complies with Section 409A.

Specific Interpretations. For purposes of Code section 409A (including, without limitation, for purposes of Treasury Regulations Section 1.409A-2(b)(2)(iii)):

[PARTY B]'s right to receive any installment payments under this agreement (whether severance payments, if any, or otherwise) will be treated as a right to receive a series of separate payments and, accordingly, each installment payment under this agreement will at all times be considered a separate and distinct payment; and

a termination of employment will 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 Section 409A and, for purposes of any such provision of this agreement, references to a "resignation," "termination," "termination of employment" or like terms will mean "separation from service".

In Case of "Specified Employee" 

Defer Payments. If [PARTY A] deems that [PARTY B] is, at the time of a separation from service, a "specified employee" for purposes of Code section 409A(a)(2)(B)(i), and if any payments or benefits that [PARTY B] becomes entitled to under this agreement on account of such separation from service are deemed to be "deferred compensation", then to the extent delayed commencement of any portion of such payments or benefits is required in order to avoid a prohibited distribution under Code section 409A(a)(2)(B)(i) and the related adverse Taxation under Code section 409A, [PARTY A] shall not provide such payments prior to the earliest of:

the expiration of the six-month period measured from the date of separation from service;

the date of [PARTY B]'s death; or

such earlier date as permitted under Code section 409A without the imposition of adverse taxation.

Payment of Deferred Payments. On the first Business Day following the expiration of such deferment period, [PARTY A] shall pay to [PARTY B]

all payments deferred under this section [IN CASE OF "SPECIFIED EMPLOYEE"] in a lump sum,

any remaining payments due shall be paid as otherwise provided herein,

with no interest due on any amounts so deferred.

Section 409A of Code

Administered Consistent with Code. The parties hereby acknowledge their mutual intent that this agreement be administered and interpreted

consistent with the requirements of the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and

to meet any applicable requirements under or exceptions from the Code, including Section 409A or the Code, and the Treasury regulations under the Code.

Deferred Payments

Deferred Payments to Avoid Tax Consequences. If an to the extent necessary to avoid adverse personal Tax consequences to [PARTY B] under Section 409A of the Code, [PARTY A] will delay payments it is otherwise required to pay to [PARTY B] under section [SEVERANCE BENEFITS] to the earlier of (i) six months and one day after [PARTY B]'s date of termination, or (ii) [PARTY B]'s death. 

Interest on Deferment. Interest shall accrue on unpaid amounts delayed under this section at the then-current prime rate in effect at [INSERT RELEVANT BANK] or any successor bank, beginning on the date that those late amounts were due.

Date of Termination. For purposes of this section, [PARTY B]'s date of termination will be interpreted in a manner consistent with the term "separation from service" as defined in Section 409A of the Code and the Treasury Regulations under the Code.

Amendments Necessary to be Consistent with Code. If the parties determine that any compensation, benefits, or other payments owed under this agreement and intended to comply with the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and other applicable authority issued by the Internal Revenue Service, [PARTY A] and [PARTY B] shall amend this agreement, and take other actions the parties deem reasonably necessary or appropriate, to both

comply with the requirements of the Code, including Section 409A of the Code, the Treasury Regulations under the Code, and

maintain as nearly as possible the economic terms and expectations of this agreement.

Interpretation. Each party has had adequate opportunity to review this agreement. Any interpretation of this agreement shall be made without regard to authorship or negotiation.

Interpretation

References to Specific Terms

Accounting Principles. Unless otherwise specified, where the character or amount of any asset or liability, item of revenue, or expense is required to be determined, or any consolidation or other accounting computation is required to be made, that determination or calculation will be made in accordance with the generally accepted accounting principles defined by the professional accounting industry in effect in the United States ("GAAP").

Currency. Unless otherwise specified, all dollar amounts expressed in this agreement refer to American currency.

"Including." Where this agreement uses the word "including," it means "including without limitation," and where it uses the word "includes," it means "includes without limitation."

"Knowledge." Where any representation, warranty, or other statement in this agreement, or in any other document entered into or delivered under this agreement,] is expressed by a party to be "to its knowledge," or is otherwise expressed to be limited in scope to facts or matters known to the party or of which the party is aware, it means:

the then-current, actual knowledge of the directors and officers of that party, and

the knowledge that would or should have come to the attention of any of them had they investigated the facts related to that statement and made reasonable inquiries of other individuals reasonably likely to have knowledge of facts related to that statement.

Statutes, etc. Unless specified otherwise, any reference in this agreement to a statute includes the rules, regulations, and policies made under that statute and any provision that amends, supplements, supersedes, or replaces that statute or those rules or policies.

Number and Gender. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders.

Headings. The headings used in this agreement and its division into sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation.

Internal References. References in this agreement to sections and other subdivisions are to those parts of this agreement.

Calculation of Time. In this agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. [TIME ZONE] Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. [TIME ZONE] Time on the next Business Day.

Construction of Terms. The parties have each participated in settling the terms of this agreement. Any rule of legal interpretation to the effect that any ambiguity is to be resolved against the drafting party will not apply in interpreting this agreement.

Conflict of Terms. If there is any inconsistency between the terms of this agreement and those in any schedule to this agreement or in any document entered into under this agreement, the terms of [this agreement/[SPECIFIED AGREEMENTS]] will prevail. The parties shall take all necessary steps to conform the inconsistent terms to the terms of [this agreement / [SPECIFIED AGREEMENTS].

Expenses. [PARTY A] shall pay all expenses in connection with administering this plan.

1.1 Effective Date. This agreement shall be binding and deemed effective when executed by all parties (the "Effective Date").

Effective Date. This agreement is made and entered into on [DATE].

Effective Date. This agreement is effective as of the [Effective Date / date shown at the top of the first page], even if any signatures are made after that date.

Amendment

Conditional Right to Amend. Subject to paragraph [EFFECT ON BENEFITS][PARTY A] may amend this plan without notice to or consent of any Participant.

Consent Required for Amendment Adversely Effecting Benefits. If [PARTY A]'s amendment would adversely affect any Participant's vested benefits, [PARTY A] may not make that amendment without the written consent of the relevant Participants.