TO EXECUTIVE PRIOR TO THE EARLIER OF (I) THE
EXPIRATION OF THE SIX-MONTH PERIOD MEASURED FROM THE DATE OF THE EXECUTIVE'S
"SEPARATION FROM SERVICE" WITH THE COMPANY (AS SUCH TERM IS DEFINED IN THE
TREASURY REGULATIONS ISSUED UNDER SECTION 409A OF THE CODE) OR (II) THE DATE OF
EXECUTIVE'S DEATH.
UPON THE EARLIER OF SUCH DATES, ALL PAYMENTS DEFERRED
PURSUANT TO THIS SECTION 5(C) SHALL BE PAID IN A LUMP SUM TO THE EXECUTIVE
(TOGETHER WITH INTEREST FOR THE PERIOD SUCH PAYMENTS ARE DEFERRED PURSUANT TO
THIS SECTION 5(C), WITH SUCH INTEREST TO ACCRUE AT THE PRIME RATE IN EFFECT AT
CITIBANK, N.A. AT THE TIME OF THE SEPARATION FROM SERVICE), AND ANY REMAINING
PAYMENTS DUE UNDER THE AGREEMENT SHALL BE PAID AS OTHERWISE PROVIDED HEREIN.
THE DETERMINATION OF WHETHER THE EXECUTIVE IS A "SPECIFIED EMPLOYEE" FOR
PURPOSES OF SECTION 409A(A)(2)(B)(I) OF THE CODE AS OF THE TIME OF HIS
SEPARATION FROM SERVICE SHALL MADE BY THE COMPANY IN ACCORDANCE WITH THE TERMS
OF SECTION 409A OF THE CODE AND APPLICABLE GUIDANCE THEREUNDER (INCLUDING
WITHOUT LIMITATION TREASURY REGULATION SECTION 1.409A-1(I) AND ANY SUCCESSOR
PROVISION THERETO).
(D)
SURVIVAL.
THE EXPIRATION OR TERMINATION OF
THE TERM SHALL NOT IMPAIR THE RIGHTS OR OBLIGATIONS OF ANY PARTY HERETO, WHICH
SHALL HAVE ACCRUED PRIOR TO SUCH EXPIRATION OR TERMINATION.
(E)
MITIGATION.
THE EXECUTIVE SHALL HAVE NO
DUTY TO MITIGATE THE AMOUNT OF ANY PAYMENT PROVIDED FOR HEREUNDER BY SEEKING
OTHER EMPLOYMENT, AND ANY INCOME EARNED BY THE EXECUTIVE FROM OTHER EMPLOYMENT
OR SELF-EMPLOYMENT SHALL NOT BE OFFSET AGAINST ANY OBLIGATIONS OF THE COMPANY TO
THE EXECUTIVE HEREUNDER.
6.
Competition.
(A)
THE EXECUTIVE SHALL NOT, AT ANY TIME DURING
THE TERM OR DURING THE 24-MONTH PERIOD FOLLOWING THE LATER OF THE EXPIRATION OF
THE TERM OR THE DATE OF TERMINATION DIRECTLY OR INDIRECTLY ENGAGE IN, HAVE ANY
EQUITY INTEREST IN, OR MANAGE OR OPERATE ANY PERSON, FIRM, CORPORATION,
PARTNERSHIP OR BUSINESS (WHETHER AS DIRECTOR, OFFICER, EMPLOYEE, AGENT,
REPRESENTATIVE, PARTNER, SECURITY HOLDER, CONSULTANT OR OTHERWISE) THAT ENGAGES
IN ANY BUSINESS WHICH COMPETES WITH ANY BUSINESS OF THE COMPANY OR ANY ENTITY
OWNED BY THE COMPANY WHOSE FINANCIAL RESULTS ARE MATERIAL TO THE COMPANY
ANYWHERE IN THE UNITED STATES PROVIDED, HOWEVER, THAT THE EXECUTIVE SHALL BE
PERMITTED TO ACQUIRE A PASSIVE STOCK OR EQUITY INTEREST IN SUCH A BUSINESS
PROVIDED THE STOCK OR OTHER EQUITY INTEREST ACQUIRED IS NOT MORE THAN FIVE
PERCENT (5%) OF THE OUTSTANDING INTEREST IN SUCH BUSINESS.
NOTHING HEREIN SHALL
PREVENT THE EXECUTIVE FROM ENGAGING IN ANY ACTIVITY WITH, OR HOLDING ANY
FINANCIAL INTEREST IN, A NON-COMPETITIVE DIVISION, SUBSIDIARY OR AFFILIATE OF AN
ENTITY ENGAGED IN A BUSINESS THAT COMPETES WITH THE COMPANY.
(B)
DURING THE TERM AND DURING THE TERM SET
FORTH IN SECTION 6(A), THE EXECUTIVE WILL NOT, EXCEPT IN THE PERFORMANCE OF HIS
DUTIES FOR THE COMPANY, AND WILL NOT KNOWINGLY PERMIT ANY OF HIS AFFILIATES TO,
DIRECTLY OR INDIRECTLY, RECRUIT OR
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otherwise solicit or induce any non-clerical employee, customer, subscriber or
supplier of the Company to terminate