WORKERS
BENEFIT PROTECTION ACT (THE "MUTUAL RELEASE").
THE AMOUNTS DESCRIBED IN
SECTIONS 4.2.1 AND 6.1.2 WILL BE PAID IN A LUMP SUM, ON THE EIGHTH DAY FOLLOWING
THE EXECUTIVE'S EXECUTION AND DELIVERY OF THE MUTUAL RELEASE (PROVIDED THAT THE
MUTUAL RELEASE HAS NOT BEEN REVOKED BY THE EXECUTIVE).
THE COMPANY COVENANTS
THAT IF THE EXECUTIVE EXECUTES THE MUTUAL RELEASE, THE COMPANY WILL ALSO EXECUTE
THE MUTUAL RELEASE.
8.2.
IRC SECTION 409A. TO THE EXTENT COMPLIANCE WITH THE REQUIREMENTS OF
TREAS. REG. §1.409A-3(I)(2) OR ANY SUCCESSOR PROVISION
IS NECESSARY TO AVOID
THE APPLICATION OF AN ADDITIONAL TAX UNDER SECTION 409A OF THE CODE ON PAYMENTS
DUE TO THE EXECUTIVE UPON OR FOLLOWING HIS SEPARATION FROM SERVICE, THEN,
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT (OR ANY OTHERWISE
APPLICABLE PLAN, POLICY, AGREEMENT OR ARRANGEMENT), ANY SUCH PAYMENTS THAT ARE
OTHERWISE DUE WITHIN SIX MONTHS FOLLOWING THE EXECUTIVE'S SEPARATION FROM
SERVICE WILL BE DEFERRED (WITHOUT INTEREST) AND PAID TO THE EXECUTIVE IN A LUMP
SUM IMMEDIATELY FOLLOWING THAT SIX MONTH PERIOD.
9.
MISCELLANEOUS.
9.1.
NO LIABILITY OF OFFICERS AND DIRECTORS FOR SEVERANCE UPON INSOLVENCY.
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT AND INTENDING TO BE BOUND
BY THIS PROVISION, THE
14
EXECUTIVE HEREBY (A) WAIVES ANY RIGHT TO CLAIM PAYMENT OF AMOUNTS OWED TO HIM,
NOW OR IN THE FUTURE, PURSUANT TO THIS AGREEMENT FROM DIRECTORS OR OFFICERS OF
THE COMPANY IF THE COMPANY BECOMES INSOLVENT, AND (B) FULLY AND FOREVER RELEASES
AND DISCHARGES THE COMPANY'S OFFICERS AND DIRECTORS FROM ANY AND ALL CLAIMS,
DEMANDS, LIENS, ACTIONS, SUITS, CAUSES OF ACTION OR JUDGMENTS ARISING OUT OF ANY
PRESENT OR FUTURE CLAIM FOR SUCH AMOUNTS.
9.2.
OTHER AGREEMENTS.
THE EXECUTIVE REPRESENTS AND WARRANTS TO THE COMPANY
THAT THERE ARE NO RESTRICTIONS, AGREEMENTS OR UNDERSTANDINGS WHATSOEVER TO WHICH
HE IS A PARTY THAT WOULD PREVENT OR MAKE UNLAWFUL HIS EXECUTION OF THIS
AGREEMENT, THAT WOULD BE INCONSISTENT OR IN CONFLICT WITH THIS AGREEMENT OR
EXECUTIVE'S OBLIGATIONS HEREUNDER, OR THAT WOULD OTHERWISE PREVENT, LIMIT OR
IMPAIR THE PERFORMANCE BY EXECUTIVE OF HIS DUTIES UNDER THIS AGREEMENT.
9.3.
SUCCESSORS AND ASSIGNS. THE COMPANY MAY ASSIGN THIS AGREEMENT TO ANY
SUCCESSOR TO ALL OR SUBSTANTIALLY ALL OF ITS ASSETS AND BUSINESS BY MEANS OF
LIQUIDATION, DISSOLUTION, MERGER, CONSOLIDATION, TRANSFER OF ASSETS, OR
OTHERWISE.
THE DUTIES OF THE EXECUTIVE HEREUNDER ARE PERSONAL TO THE EXECUTIVE
AND MAY NOT BE ASSIGNED BY HIM.
9.4.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS.
9.5.
ENFORCEMENT.
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT WILL BE INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA, OR IF THAT COURT DOES NOT HAVE OR WILL NOT ACCEPT
JURISDICTION, IN ANY COURT OF GENERAL JURISDICTION IN THE COMMONWEALTH OF
PENNSYLVANIA, AND THE EXECUTIVE AND THE COMPANY HEREBY CONSENT TO THE PERSONAL
AND EXCLUSIVE JURISDICTION OF SUCH COURT(S) AND HEREBY WAIVE ANY
OBJECTION(S) THAT THEY MAY