Adaptec 2007 Annual Report Download - page 118

5. Section 409A. (i) Notwithstanding any provision to the contrary in this Agreement (other than Section 5 (ii) below), no payments or benefits to which the
Executive becomes entitled under Section 1 of this Agreement shall be made or paid to the Executive prior to the earlier of (A) the expiration of the 6-month
period measured from the date of his Separation from Service or (B) the date of the Executive’s death, if the Executive is deemed at the time of such Separation
from Service a “key employee” within the meaning of that term under Code Section 416(i) and such delayed commencement is otherwise required in order to
avoid a prohibited distribution under Code Section 409A(a)(2). Upon the expiration of the applicable Code Section 409A(a)(2) deferral period, all payments
deferred pursuant to this Section 5 shall be paid in a lump sum to the Executive, and any remaining payments due under this Agreement shall be paid in
accordance with the normal payment dates specified for them herein.
(ii) The six month holdback set forth in Section 5(i) above shall not be applicable to (A) any severance payments under Section 1 that qualify as
Short-Term Deferral Payments and ((B) any remaining portion of the severance payments due Executive under Section 1 to the extent (1) the sum of the
Executive’s annualized compensation for the taxable year preceding the taxable year of Executive’s Separation from Service and (2) the maximum amount that
may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive has a Separation from Service,
provided such severance payments are paid no later than the last day of Executive’s second taxable year following the taxable year in which the Separation from
Service occurs.
6. Assignment. This Agreement shall bind and benefit (i) Executive’s heirs, executors and legal representatives upon Executive’s death to the extent the
benefit is due and payable at the time of Executive’s death and (ii)any successor of the Company. Any such successor of the Company shall be deemed
substituted for the Company under the terms of this Agreement for all purposes. “Successor” shall include any person, firm, corporation or other business entity
which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company.
Executive has no other right to assign this Agreement and any such attempted assignment is void.
7. Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed given if: (i) delivered
personally, (ii) one day after being sent by Federal Express or a similar commercial overnight service, or (iii) three days after being mailed by registered or
certified mail, return receipt requested, prepaid and addressed to Company at its principal office, attention: Chief Executive Officer, or to Executive at his last
principal residence known to the Company, or at such other addresses as the parties may designate by written notice.
8. Severability. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision.
9. Entire Agreement. This Agreement represents the entire agreement and understanding between the Company and Executive concerning payments to
Executive in the event of a Change of Control and supersedes any and all prior change of control agreements between the Company and Executive, but does not
supersede any other agreements between Company and Executive, including but not limited to, the Confidentiality Agreement, the Indemnification Agreement
entered into by and between the Executive and the Company, and any restricted stock purchase
Source: PMC SIERRA INC, 10-K, February 22, 2008