PAYMENT OF PREMIUMS OF EXECUTIVE'S GROUP HEALTH INSURANCE COBRA
CONTINUATION COVERAGE, INCLUDING COVERAGE FOR EXECUTIVE'S ELIGIBLE DEPENDENTS,
FOR A MAXIMUM PERIOD OF TWELVE (12) MONTHS FOLLOWING SUCH TERMINATION; PROVIDED,
HOWEVER, THAT THE COMPANY SHALL PAY PREMIUMS FOR EXECUTIVE'S ELIGIBLE DEPENDENTS
ONLY FOR COVERAGE FOR WHICH THOSE ELIGIBLE DEPENDENTS WERE ENROLLED IMMEDIATELY
PRIOR TO SUCH TERMINATION AND THE COMPANY'S OBLIGATION TO PAY SUCH PREMIUMS
SHALL CEASE IMMEDIATELY UPON EXECUTIVE'S ELIGIBILITY FOR COMPARABLE GROUP HEALTH
INSURANCE PROVIDED BY A NEW EMPLOYER; AND
(V)
EXECUTIVE'S OPTIONS GRANTED PRIOR TO THE EFFECTIVE DATE SHALL
REMAIN EXERCISABLE FOLLOWING EXECUTIVE'S TERMINATION IN ACCORDANCE WITH THE
APPLICABLE COMPANY INCENTIVE PLAN PURSUANT TO WHICH SUCH OPTIONS WERE GRANTED.
Following any such termination of Executive's employment, except as set forth in
this Section 3, Executive shall have no further rights to any compensation or
any other benefits under this Agreement.
SECTION 4.
CHANGE IN CONTROL.
NOTWITHSTANDING ANYTHING HEREIN TO
THE CONTRARY AND PROVIDED EXECUTIVE COMPLIES WITH THE RESTRICTIVE COVENANTS, IN
THE EVENT THAT EXECUTIVE SUFFERS A "CHANGE IN CONTROL TERMINATION" (AS DEFINED
IN THE EMPLOYMENT AGREEMENT) PRIOR TO THE SEPARATION DATE, THEN IN LIEU OF ANY
OTHER POST-TERMINATION PAYMENTS OR BENEFITS DESCRIBED HEREIN, INCLUDING WITHOUT
LIMITATION THOSE DESCRIBED SECTIONS 2 AND 3 HEREOF, EXECUTIVE SHALL INSTEAD BE
ENTITLED TO THE PAYMENTS AND BENEFITS DESCRIBED IN SECTION 11(E), "CHANGE IN
CONTROL SEVERANCE BENEFITS," OF THE EMPLOYMENT AGREEMENT, AND SECTION 1(D)
HEREOF SHALL NOT APPLY.
TO THE EXTENT NECESSARY TO COMPLY WITH SECTION 409A OF
THE INTERNAL REVENUE CODE, THE PARTIES HERETO AGREE TO DELAY THE PAYMENT OF THE
"CHANGE IN CONTROL SEVERANCE BENEFITS" PROVIDED IN SECTION 11(E) OF THE
EMPLOYMENT AGREEMENT FOR SIX MONTHS.
ONCE SUCH SIX MONTH PERIOD HAS EXPIRED,
THE COMPANY SHALL PROMPTLY MAKE ALL SUCH PAYMENTS WHICH WERE DELAYED DURING SUCH
PERIOD.
SECTION 5.
TERMINATION DATE.
THE DATE UPON WHICH EXECUTIVE'S
EMPLOYMENT AS PRESIDENT AND CHIEF EXECUTIVE OFFICER IS TERMINATED, WHETHER IS
DESCRIBED IN SECTIONS 2, 3 OR 4 HEREOF, IS HEREINAFTER REFERRED TO AS THE
"TERMINATION DATE".
4
SECTION 6.
RESTRICTIVE COVENANTS.
EXECUTIVE ACKNOWLEDGES THAT THE
RESTRICTIVE COVENANTS SET FORTH IN THE PROPRIETARY INFORMATION, INVENTIONS,
NON-COMPETITION, AND NON-SOLICITATION AGREEMENT, ATTACHED TO THE EMPLOYMENT
AGREEMENT AS EXHIBIT A, AND SECTIONS 12 AND 13 OF THE EMPLOYMENT AGREEMENT SHALL
REMAIN IN FULL FORCE AND EFFECT FOLLOWING THE TERMINATION DATE AND EXECUTIVE
FURTHER AGREES TO COMPLY WITH THE TERMS OF SUCH RESTRICTIVE COVENANTS.
SECTION 7.
RELEASE.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, EXECUTIVE SHALL NOT BE ENTITLED TO ANY BENEFITS PURSUANT TO THIS
AGREEMENT PRIOR TO THE TIME IN WHICH HE EXECUTES A FULL GENERAL RELEASE OF
CLAIMS AGAINST THE COMPANY AND ITS AFFILIATES SUBSTANTIALLY IN THE FORM ATTACHED
TO THE EMPLOYMENT AGREEMENT AS EXHIBIT B.
SECTION 8.
NON-DISPARAGEMENT.
EXECUTIVE AGREES THAT, EXCEPT AS
REQUIRED BY APPLICABLE LAW, OR COMPELLED BY PROCESS OF LAW, AT ANY TIME
FOLLOWING THE DATE HEREOF, NEITHER EXECUTIVE, NOR ANYONE ACTING ON HIS BEHALF,
SHALL HEREAFTER MAKE ANY DEROGATORY, DISPARAGING OR CRITICAL STATEMENT ABOUT THE
COMPANY, THE COMPANY'S SUBSIDIARIES OR AFFILIATES, OR ANY