TIME TO TIME FOR THE COMPANY'S SIMILARLY
SITUATED ACTIVE EMPLOYEES,
3
PROVIDED THAT (I) EXECUTIVE WAS PARTICIPATING IN SUCH PLANS AT THE TIME OF
EXECUTIVE'S SEVERANCE TERMINATION, (II) SUCH PLAN(S) PERMIT CONTINUED
PARTICIPATION BY TERMINATED EMPLOYEES AND (III) WITH RESPECT TO ANY SUCH PLAN
SUBJECT TO CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1986 ("COBRA"),
SUCH COVERAGE IS CO-EXTENSIVE WITH COBRA AND EXECUTIVE MAKES A VALID ELECTION OF
CONTINUATION COVERAGE UNDER COBRA.
E.
ANY TERMINATION OF EMPLOYMENT TRIGGERING PAYMENT OF BENEFITS
UNDER THIS AGREEMENT MUST CONSTITUTE A "SEPARATION FROM SERVICE" WITHIN THE
MEANING OF TREAS. REG. § 1.409A-1(H) BEFORE DISTRIBUTION OF SUCH BENEFITS CAN
COMMENCE.
FOR PURPOSES OF CLARIFICATION, THIS PARAGRAPH SHALL NOT CAUSE ANY
FORFEITURE OF BENEFITS ON THE PART OF THE EXECUTIVE, BUT SHALL ONLY ACT AS A
DELAY UNTIL SUCH TIME AS A SEPARATION FROM SERVICE OCCURS.
F.
UPON ANY TERMINATION OF EXECUTIVE'S EMPLOYMENT HEREUNDER,
EXECUTIVE SHALL EXECUTE AND DELIVER TO THE COMPANY A GENERAL RELEASE IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY RELEASING THE PARENT, THE
COMPANY, ITS DIRECTORS, OFFICERS, AGENTS AND EXECUTIVES OF ANY FORM OF
LIABILITY, OBLIGATION, CLAIM OR CAUSE OF ACTION RELATING TO EXECUTIVE'S
EMPLOYMENT BY THE COMPANY.
SUCH EXECUTED RELEASE MUST BE RECEIVED BY THE
COMPANY NO LATER THAN SIXTY (60) DAYS FOLLOWING THE DATE OF THE EXECUTIVE'S
"SEPARATION FROM SERVICE" AS DESCRIBED ABOVE.
IF SUCH RELEASE IS NOT RECEIVED
BY SUCH TIME, ALL SEVERANCE PAYMENTS SET FORTH HEREIN SHALL BY IRREVOCABLY
FORFEITED BY THE EXECUTIVE.
G.
IF ANY AMOUNT TO BE PAID TO EXECUTIVE PURSUANT TO THIS AGREEMENT
AS A RESULT OF EXECUTIVE'S TERMINATION OF EMPLOYMENT IS "DEFERRED COMPENSATION"
SUBJECT TO SECTION 409A OF THE CODE AND THE RULES AND REGULATIONS THEREUNDER AND
IF THE EXECUTIVE IS A "SPECIFIED EMPLOYEE" (AS DEFINED UNDER SECTION 409A OF THE
CODE) AS OF THE DATE OF EXECUTIVE'S TERMINATION OF EMPLOYMENT HEREUNDER, THEN,
TO THE EXTENT NECESSARY TO AVOID THE IMPOSITION OF EXCISE TAXES OR OTHER
PENALTIES UNDER SECTION 409A OF THE CODE, THE PAYMENT OF BENEFITS, IF ANY,
SCHEDULED TO BE PAID BY THE COMPANY TO EXECUTIVE HEREUNDER DURING THE FIRST SIX
(6) MONTH PERIOD FOLLOWING THE DATE OF A TERMINATION OF EMPLOYMENT HEREUNDER
SHALL NOT BE PAID UNTIL THE DATE WHICH IS THE FIRST BUSINESS DAY FOLLOWING THE
SIX-MONTH ANNIVERSARY OF EXECUTIVE'S TERMINATION OF EMPLOYMENT FOR ANY REASON
OTHER THAN DEATH.
ANY DEFERRED COMPENSATION PAYMENTS DELAYED IN ACCORDANCE WITH
THE TERMS OF THIS PARAGRAPH SHALL BE PAID IN A LUMP SUM WHEN PAID.
3.
RESTRICTIVE COVENANTS.
A.
CONFIDENTIALITY.
(I)
EXECUTIVE WILL NOT AT ANY TIME (WHETHER DURING OR AFTER EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY), OTHER THAN IN THE ORDINARY COURSE OF PERFORMING
SERVICES FOR THE COMPANY, (X) RETAIN OR USE FOR THE BENEFIT, PURPOSES OR ACCOUNT
OF EXECUTIVE OR ANY OTHER PERSON, FIRM, PARTNERSHIP, JOINT VENTURE, ASSOCIATION,
CORPORATION OR OTHER BUSINESS ORGANIZATION, ENTITY OR ENTERPRISE WHATSOEVER
("PERSON"); OR (Y) DISCLOSE, DIVULGE, REVEAL, COMMUNICATE, SHARE, TRANSFER OR
PROVIDE ACCESS TO ANY PERSON OUTSIDE THE COMPANY (OTHER THAN ITS PROFESSIONAL
ADVISERS WHO ARE