AFTER THE EMPLOYEE'S DATE OF TERMINATION TO THE EXTENT
THAT SUCH PAYMENT WOULD RESULT IN ADVERSE TAX CONSEQUENCES UNDER SECTION 409A OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
I)
DEFINITION OF "GOOD REASON".
FOR PURPOSES OF THIS SECTION, "GOOD
REASON" SHALL BE DEFINED AS: (A) A DEMOTION OR MATERIAL REDUCTION OR ALTERATION
OF EMPLOYEE'S JOB TITLE OR JOB DUTIES AND RESPONSIBILITIES INCONSISTENT WITH
EMPLOYEE'S CURRENT POSITION; (B) A REDUCTION OF EMPLOYEE'S BASE SALARY; OR (C) A
RELOCATION OF EMPLOYEE'S PRINCIPAL OFFICE BY MORE THAN FIFTY (50) MILES; AND
FURTHER PROVIDED THAT GOOD REASON MAY BE FOUND UNDER THIS SUBSECTION 4(B)(I)
WITHOUT REGARD TO WHETHER THERE HAS BEEN A SALE OR TRANSFER OF ANY OR ALL OF THE
COMPANY'S ASSETS.
II)
MEDICAL ALLOWANCE AND OUTPLACEMENT SERVICES.
IN ADDITION TO THE
PAYMENT PROVIDED IN SUBSECTION 4(B), THE COMPANY WILL PROVIDE (I) SIX (6)
MONTHS' OUTPLACEMENT SERVICES TO BE DETERMINED BY THE COMPANY AND (II) AN AMOUNT
EQUAL TO THE EMPLOYEE'S COST FOR MEDICAL AND DENTAL CONTINUATION COVERAGE
PURSUANT TO COBRA FOR SIX (6) MONTHS AT THE COVERAGE TYPE AND LEVEL AS IS IN
EFFECT AS OF THE DATE OF THE EMPLOYEE'S TERMINATION OF EMPLOYMENT.
III)
RELEASE.
EMPLOYEE WILL ONLY RECEIVE SEVERANCE PAY AND THE
ADDITIONAL BENEFITS PROVIDED IN SUBSECTION 4(B)(II) IF EMPLOYEE SIGNS A FORM
RELEASING ALL CLAIMS AGAINST THE COMPANY WHICH SHALL BE FURNISHED BY THE COMPANY
NO LATER THAN 45 DAYS AFTER THE EFFECTIVE TERMINATION DATE (OR WITHIN 45 DAYS
AFTER AN ARBITRATOR DETERMINES THAT EMPLOYEE IS ENTITLED TO SUCH PAYMENTS), AND
EMPLOYEE DOES NOT THEREAFTER REVOKE THE RELEASE.
IV)
NO DUTY TO MITIGATE.
IN THE EVENT EMPLOYEE'S EMPLOYMENT IS
TERMINATED IN A MANNER THAT GIVES EMPLOYEE A RIGHT TO RECEIVE PAYMENT DESCRIBED
IN SUBSECTIONS 4(B) AND 4(B)(II) (COLLECTIVELY, "DAMAGES"), EMPLOYEE SHALL HAVE
NO OBLIGATION TO MITIGATE SUCH DAMAGES THROUGH SUBSEQUENT EMPLOYMENT OR OTHER
EARNINGS.
(C)
RESIGNATION WITHOUT GOOD REASON.
EMPLOYEE MAY RESIGN EMPLOYMENT AT ANY
TIME UPON SIXTY (60) DAYS' NOTICE TO THE COMPANY.
IN SUCH EVENT, IF REQUESTED
BY THE COMPANY, EMPLOYEE SHALL CONTINUE TO RENDER SERVICES AND SHALL BE PAID
EMPLOYEE'S REGULAR SALARY AND RECEIVE NORMAL BENEFITS UP TO THE EFFECTIVE DATE
OF TERMINATION.
IN THE EVENT OF A RESIGNATION WITHOUT GOOD REASON, ALL SALARY
AND OTHER BENEFITS PROVIDED TO EMPLOYEE UNDER THIS AGREEMENT SHALL CEASE AS OF
THE DATE OF TERMINATION.
5.
THIS AGREEMENT TO BE KEPT CONFIDENTIAL.
AS A MATERIAL CONDITION TO THIS
AGREEMENT, EMPLOYEE AGREES NOT TO DISCLOSE THE TERMS OF THIS AGREEMENT, WITHOUT
THE COMPANY'S PRIOR WRITTEN PERMISSION, TO ANYONE OTHER THAN AN IMMEDIATE FAMILY
MEMBER OR AN ATTORNEY, ACCOUNTANT OR OTHER PROFESSIONAL ADVISOR WHO AGREES IN
ADVANCE TO HONOR THIS CONFIDENTIALITY REQUIREMENT.
EMPLOYEE FURTHER UNDERSTANDS
THAT, SO LONG AS THE COMPANY HAS REPORTING OBLIGATIONS UNDER SEC REGULATIONS,
THE COMPANY IS NOT PROHIBITED FROM DISCLOSING THE TERMS OF THIS AGREEMENT TO THE
EXTENT LEGALLY REQUIRED BY APPLICABLE REPORTING REQUIREMENTS.
THIS AGREEMENT
ALSO DOES NOT PROHIBIT EMPLOYEE FROM DISCLOSING THE TERMS OF THIS AGREEMENT TO
THE
3
EXTENT NECESSARY TO ENFORCE