BENEFITS PURSUANT TO SECTION 8
WILL BE SUBJECT TO EXECUTIVE SIGNING AND NOT REVOKING A SEPARATION AGREEMENT AND
RELEASE OF CLAIMS IN A FORM ACCEPTABLE TO THE COMPANY.
NO SEVERANCE OR OTHER
BENEFITS WILL BE PAID OR PROVIDED UNTIL THE SEPARATION AGREEMENT AND RELEASE
AGREEMENT BECOMES EFFECTIVE.
(B)
NON-SOLICITATION AND NON-COMPETITION.
THE
RECEIPT OF ANY SEVERANCE OR OTHER BENEFITS PURSUANT TO SECTION 8 WILL BE SUBJECT
TO EXECUTIVE AGREEING THAT DURING THE EMPLOYMENT TERM AND CONTINUANCE PERIOD,
EXECUTIVE WILL NOT (I) SOLICIT ANY EMPLOYEE OF THE COMPANY (OTHER THAN
EXECUTIVE'S PERSONAL ASSISTANT) FOR EMPLOYMENT OTHER THAN AT THE COMPANY, OR
(II) DIRECTLY OR INDIRECTLY ENGAGE IN, HAVE ANY OWNERSHIP INTEREST IN OR
PARTICIPATE IN ANY ENTITY THAT AS OF THE DATE OF TERMINATION, COMPETES WITH THE
COMPANY IN ANY SUBSTANTIAL BUSINESS OF THE COMPANY OR ANY BUSINESS REASONABLY
EXPECTED TO BECOME A SUBSTANTIAL BUSINESS OF THE COMPANY.
EXECUTIVE'S PASSIVE
OWNERSHIP OF NOT MORE THAN 1% OF ANY PUBLICLY TRADED COMPANY AND/OR 5% OWNERSHIP
OF ANY PRIVATELY HELD COMPANY WILL NOT CONSTITUTE A BREACH OF THIS SECTION 9(B).
(C)
NONDISPARAGEMENT.
DURING THE EMPLOYMENT
TERM AND CONTINUANCE PERIOD, EXECUTIVE AND THE COMPANY IN ITS OFFICIAL
COMMUNICATIONS WILL NOT KNOWINGLY AND MATERIALLY DISPARAGE, CRITICIZE, OR
OTHERWISE MAKE ANY DEROGATORY STATEMENTS REGARDING THE OTHER.
THE COMPANY WILL
INSTRUCT ITS OFFICERS AND DIRECTORS TO NOT KNOWINGLY AND MATERIALLY DISPARAGE,
CRITICIZE, OR OTHERWISE MAKE ANY DEROGATORY STATEMENTS REGARDING EXECUTIVE.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS AGREEMENT WILL BE
DEEMED TO RESTRICT EXECUTIVE, THE COMPANY OR ANY OF THE COMPANY'S CURRENT OR
FORMER OFFICERS AND/OR DIRECTORS FROM PROVIDING FACTUAL INFORMATION TO ANY
GOVERNMENTAL OR REGULATORY AGENCY (OR IN ANY WAY LIMIT THE CONTENT OF ANY SUCH
INFORMATION) TO THE EXTENT THEY ARE REQUESTED OR REQUIRED TO PROVIDE SUCH
INFORMATION PURSUANT TO APPLICABLE LAW OR REGULATION.
(D)
OTHER REQUIREMENTS.
EXECUTIVE'S RECEIPT OF
CONTINUED SEVERANCE PAYMENTS WILL BE SUBJECT TO EXECUTIVE CONTINUING TO COMPLY
WITH THE TERMS OF THE CONFIDENTIAL INFORMATION AGREEMENT AND THE PROVISIONS OF
THIS SECTION 9.
(E)
NO DUTY TO MITIGATE.
EXECUTIVE WILL NOT BE
REQUIRED TO MITIGATE THE AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS AGREEMENT,
NOR WILL ANY EARNINGS THAT EXECUTIVE MAY RECEIVE FROM ANY OTHER SOURCE REDUCE
ANY SUCH PAYMENT.
10.
CODE SECTION 409A.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT SOLELY WITH RESPECT TO THE TIMING OF THE
PAYMENT OF ANY SEVERANCE PAYMENTS OR BENEFITS OTHER THAN PAYMENT ON ACCOUNT OF
EXECUTIVE'S TERMINATION DUE TO EXECUTIVE'S DEATH, IF EXECUTIVE IS A "SPECIFIED
EMPLOYEE" WITHIN THE MEANING OF SECTION 409A OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") (AS IT HAS BEEN AND MAY BE AMENDED FROM TIME TO
TIME) AND ANY REGULATIONS AND GUIDANCE PROMULGATED THEREUNDER ("SECTION 409A")
AT THE TIME OF EXECUTIVE'S TERMINATION, THEN TO THE EXTENT ANY SEVERANCE
PAYMENTS PAYABLE TO EXECUTIVE PURSUANT TO THIS AGREEMENT, AND ANY OTHER
SEVERANCE PAYMENTS OR SEPARATION BENEFITS ARE A PLAN OR PART OF A PLAN PROVIDING
FOR THE "DEFERRAL OF COMPENSATION" UNDER SECTION 409A (TOGETHER, THE "DEFERRED