EVENT THAT ANY OF SUCH PAYMENTS UNDER THIS SUBPARAGRAPH (3) ARE SUBJECT TO SEC.
409A OF THE CODE, THE PAYMENT OF SUCH AMOUNTS WILL BE MODIFIED IN ORDER TO BE
EXEMPT FROM SEC. 409A (TO THE EXTENT POSSIBLE).
THE PARTIES UNDERSTAND AND
AGREE THAT THIS CONTRACT WILL BE AMENDED AS NEEDED IN ORDER TO SPECIFY THE
PARTICULAR PAYMENT'S REQUIREMENTS AND LIMITATIONS AS MODIFIED.
FOR EXAMPLE, IN
THE EVENT THAT, AT THE TIME OF EMPLOYEE'S TERMINATION OF EMPLOYMENT, HE IS
DEEMED TO BE A "KEY EMPLOYEE" (SEE SUBPARAGRAPH "(3)(C)" ABOVE), THEN THE FULL
AMOUNT OF DEFERRED COMPENSATION WHICH COULD NOT BE PAID DURING THE FIRST SIX
(6) MONTHS FOLLOWING THE DATE OF TERMINATION SHALL BE PAID IN THE SEVENTH (7TH)
MONTH FOLLOWING THE DATE OF TERMINATION.
HOWEVER, IN THE EVENT OF ANY SUCH
MODIFICATION AND/OR AMENDMENT WHICH HAS THE EFFECT OF REDUCING THE ECONOMIC
BENEFIT RECEIVABLE BY EMPLOYEE UNDER THIS CONTRACT, COMPANY SHALL PAY TO
EMPLOYEE A REIMBURSEMENT AMOUNT WHICH WILL HAVE THE EFFECT OF OFFSETTING (ON AN
AFTER-TAX BASIS) THE AMOUNT OF SUCH ECONOMIC BENEFIT LOST.
(E)
EMPLOYEE SHALL NOT BE REQUIRED TO MITIGATE THE AMOUNT OF ANY
PAYMENT PROVIDED FOR IN THIS SUBPARAGRAPH (3) BY SEEKING OTHER EMPLOYMENT OR
OTHERWISE, NOR SHALL THE AMOUNT OF ANY PAYMENT PROVIDED FOR IN THIS
SUBPARAGRAPH (3) BE REDUCED BY ANY COMPENSATION EARNED BY EMPLOYEE AS THE RESULT
OF SELF-EMPLOYMENT OR EMPLOYMENT BY ANOTHER EMPLOYER.
B.
BY EMPLOYEE.
IF SUCH TERMINATION IS CAUSED BY EMPLOYEE FOR ANY
REASON, COMPANY WILL HAVE NO OBLIGATION TO PAY TO EMPLOYEE ANY COMPENSATION OR
FRINGE BENEFITS FOLLOWING THE DATE OF TERMINATION (UNLESS OTHERWISE REQUIRED
UNDER APPLICABLE LAW).
9.
DISCLOSURE OF CONFIDENTIAL INFORMATION; COVENANT NOT TO COMPETE.
COMPANY POSSESSES SECRET AND CONFIDENTIAL EQUIPMENT, TECHNIQUES, PROCESSES,
PROCEDURES, TECHNICAL DATA AND INFORMATION, AND CUSTOMER LISTS USED OR INTENDED
FOR UTILIZATION IN ITS OPERATIONS OF WHICH EMPLOYEE HAS OBTAINED OR MAY OBTAIN
KNOWLEDGE, AND COMPANY WOULD SUFFER SERIOUS HARM IF THIS CONFIDENTIAL
INFORMATION WERE DISCLOSED OR IF EMPLOYEE USED THIS INFORMATION TO COMPETE
AGAINST COMPANY.
FURTHER, EMPLOYEE IN THE
6
PERFORMANCE OF SERVICES HEREUNDER MAY DEVELOP OR CONCEIVE NEW AND ADDITIONAL
INVENTIONS AND IMPROVEMENTS WITH RESPECT TO SUCH MATTERS.
ACCORDINGLY, EMPLOYEE
HEREBY AGREES THAT SIMULTANEOUSLY WITH THE EXECUTION OF THIS CONTRACT HE SHALL
EXECUTE AND DELIVER TO COMPANY, AND THEREAFTER ABIDE BY, THE TERMS OF A
"CONFIDENTIALITY AGREEMENT AND COVENANT NOT TO COMPETE" AND "DISCLOSURE AND
INVENTION AGREEMENT," COPIES OF EACH OF WHICH ARE ATTACHED HERETO AS EXHIBITS
"B" AND "C" AND INCORPORATED HEREIN BY REFERENCE.
10.
REMEDIES.
EMPLOYEE AGREES THAT IN THE EVENT OF HIS BREACH OF HIS
COVENANTS AND AGREEMENTS CONTAINED OR REFERENCED IN THIS CONTRACT, COMPANY SHALL
BE ENTITLED TO OBTAIN INJUNCTIVE OR SIMILAR RELIEF FROM A COURT OF COMPETENT
JURISDICTION.
THE COVENANTS CONTAINED IN EXHIBITS "B" AND "C" HEREOF SHALL BE
CONSTRUED AS AGREEMENTS INDEPENDENT OF ANY OTHER AGREEMENTS BETWEEN COMPANY AND
EMPLOYEE, AND THE EXISTENCE OF ANY CLAIM OR CAUSE OF ACTION OF EMPLOYEE AGAINST
COMPANY, WHETHER PREDICATED ON THIS CONTRACT OR OTHERWISE, SHALL NOT