BY THIS PARAGRAPH, THE ADVISORS MAY MAKE
REASONABLE ASSUMPTIONS AND APPROXIMATIONS CONCERNING APPLICABLE TAXES AND MAY
RELY ON INTERPRETATIONS OF THE CODE FOR WHICH THERE IS A "SUBSTANTIAL AUTHORITY"
TAX REPORTING POSITION.
THE COMPANY AND EXECUTIVE SHALL FURNISH TO THE ADVISORS
SUCH INFORMATION AND DOCUMENTS AS THE ADVISORS MAY REASONABLY REQUEST IN ORDER
TO MAKE A DETERMINATION UNDER THIS SECTION.
THE COMPANY SHALL BEAR ALL COSTS
THE ADVISORS MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS
CONTEMPLATED BY THIS PARAGRAPH.
(J)
LIQUIDATED DAMAGES/RELEASE.
EXECUTIVE ACKNOWLEDGES THAT, UPON EXECUTING A
RELEASE AS SET FORTH BELOW, ANY PAYMENTS AND BENEFITS RESULTING FROM A
TERMINATION OF EXECUTIVE'S EMPLOYMENT UNDER SECTION 4(B), (C) OR (G) OF THIS
AGREEMENT WHICH ARE NOT REQUIRED BY LAW ARE IN SATISFACTION OF ANY AND ALL
CLAIMS THAT EXECUTIVE MAY HAVE AGAINST THE COMPANY OR ANY ACQUIRING COMPANY
(OTHER THAN BENEFITS UNDER THE COMPANY'S BENEFIT PLANS THAT BY THEIR TERMS
SURVIVE TERMINATION OF EMPLOYMENT, BENEFITS UNDER THE CONSOLIDATED OMNIBUS
BUDGET RECONCILIATION ACT OF 1985, AS AMENDED, AND RIGHTS TO INDEMNIFICATION
UNDER CERTAIN INDEMNIFICATION ARRANGEMENTS FOR OFFICERS OF THE COMPANY), AND
REPRESENT LIQUIDATED DAMAGES (AND NOT A PENALTY).
THE COMPANY WILL REQUIRE THAT
EXECUTIVE EXECUTE AND NOT REVOKE A SEPARATION AGREEMENT AND A RELEASE OF ALL
CLAIMS IN FAVOR OF THE COMPANY IN A FORM REASONABLY SATISFACTORY TO THE COMPANY
PRIOR TO, AND AS A CONDITION TO, RECEIPT OF SUCH PAYMENTS AND BENEFITS.
5.
TAXES.
EXCEPT AS SET FORTH IN SECTION 4(I) ABOVE, EXECUTIVE WILL BE
RESPONSIBLE FOR THE PAYMENT OF ANY TAX LIABILITY INCURRED AS A RESULT OF THIS
AGREEMENT.
THE COMPANY MAY WITHHOLD TAX ON ANY PAYMENTS OR BENEFITS PROVIDED TO
EXECUTIVE AS REQUIRED BY LAW OR REGULATION. THE EXECUTIVE IS SOLELY RESPONSIBLE
AND LIABLE FOR THE SATISFACTION OF ALL TAXES AND PENALTIES THAT MAY ARISE UNDER
SECTION 409A OF THE CODE, AND THE COMPANY SHALL NOT HAVE ANY OBLIGATION TO
INDEMNIFY OR OTHERWISE HOLD EXECUTIVE HARMLESS FROM ANY OR ALL OF SUCH TAXES.
THE COMPANY SHALL HAVE THE SOLE DISCRETION TO INTERPRET THE REQUIREMENTS OF THE
CODE, INCLUDING SECTION 409A, FOR PURPOSES OF THIS PROVISION, BUT SHALL ONLY ACT
IN ACCORDANCE WITH WRITTEN ADVICE FROM ITS ADVISORS
7
NEVERTHELESS, IF THE COMPANY OR EXECUTIVE DETERMINE THAT DELAYING SEVERANCE
PAYMENTS WILL AVOID SUBJECTING EXECUTIVE TO SECTION 409(A) TAXES AND PENALTIES,
THE COMPANY SHALL MODIFY THE PAYMENT TERMS OF THIS AGREEMENT TO THE LIMITED
EXTENT, AND FOR THE MINIMUM DEFERRAL PERIOD, THAT THE COMPANY REASONABLY
DETERMINES IS NECESSARY TO AVOID SUBJECTING EXECUTIVE TO SECTION 409A
PENALTIES.
.
6.
CONFIDENTIAL INFORMATION.
EXCEPT AS REASONABLY NECESSARY TO PERFORM
EXECUTIVE'S DUTIES HEREUNDER, EXECUTIVE AGREES NOT TO REVEAL TO ANY OTHER PERSON
OR ENTITY OR USE FOR EXECUTIVE'S OWN BENEFIT ANY CONFIDENTIAL INFORMATION OF OR
ABOUT THE COMPANY OR ITS OPERATIONS, BOTH DURING AND AFTER EXECUTIVE'S
EMPLOYMENT UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION MARKETING PLANS,
FINANCIAL INFORMATION, KEY PERSONNEL, EXECUTIVES' CAPABILITIES, SALARIES AND
BENEFITS, CUSTOMER LISTS, PRICING AND COST STRUCTURES, OPERATION METHODS AND ANY
OTHER INFORMATION NOT AVAILABLE TO THE PUBLIC, WITHOUT