EFFECTIVE GENERAL RELEASE AND NONDISPARAGEMENT AGREEMENT (IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE COMPANY) OF ALL CLAIMS, INCLUDING BUT NOT LIMITED
TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT, TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, WHICH THE EXECUTIVE MIGHT HAVE AT SUCH TIME AGAINST THE COMPANY AND
(II) THE RESIGNATION OF THE EXECUTIVE FROM ALL POSITIONS OF ANY NATURE WHICH THE
EXECUTIVE MAY THEN HAVE HELD WITH THE COMPANY AND ANY SUBSIDIARY OF THE COMPANY.
(J)
LIMITATION AS TO AMOUNTS PAYABLE.
NOTWITHSTANDING ANY PROVISION
OF THIS AGREEMENT TO THE CONTRARY (INCLUDING WITHOUT LIMITATION THE PROVISIONS
OF SECTION 11(F)), IF ALL OR ANY PORTION OF THE AMOUNTS TO BE PAID TO THE
EXECUTIVE UNDER THIS AGREEMENT OTHERWISE WOULD BE A "PARACHUTE PAYMENT," AS
DEFINED IN SECTION 280G(B)(2) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE") AND THE TREASURY REGULATIONS THEREUNDER, THE AGGREGATE PRESENT
VALUE OF THE TOTAL AMOUNTS TO BE PAID TO THE EXECUTIVE UNDER THIS AGREEMENT
SHALL BE LIMITED TO AN AMOUNT THAT IS LESS THAN THREE TIMES THE EXECUTIVE'S
"ANNUALIZED INCLUDIBLE COMPENSATION FOR THE BASE PERIOD," AS DEFINED IN SECTION
280G(D) OF THE CODE AND ANY TREASURY REGULATIONS THEREUNDER; PROVIDED, HOWEVER,
THAT IN NO EVENT SHALL THE AMOUNT PAYABLE UNDER THIS AGREEMENT BE REDUCED
PURSUANT TO THIS SECTION 11(J) TO LESS THAN THE MAXIMUM AMOUNT THAT MAY BE PAID
TO THE EXECUTIVE WITHOUT CAUSING ANY PORTION OF SUCH AMOUNT TO BECOME
NONDEDUCTIBLE UNDER SECTION 280G OF THE CODE AND SUBJECT TO THE EXCISE TAX
IMPOSED BY SECTION 4999 OF THE CODE.
THE DETERMINATION OF THE EXECUTIVE'S
"ANNUALIZED INCLUDIBLE COMPENSATION FOR THE BASE PERIOD" AND THE DEDUCTIBILITY
OF PAYMENTS MADE PURSUANT TO THIS AGREEMENT SHALL BE MADE BY THE INDEPENDENT
OUTSIDE ACCOUNTING FIRM REGULARLY RETAINED BY THE COMPANY.
FOR PURPOSES OF THIS
SECTION 11(J), "PRESENT VALUE" SHALL BE DETERMINED IN ACCORDANCE WITH SECTION
280G OF THE CODE AND THE TREASURY REGULATIONS THEREUNDER.
(K)
COORDINATION WITH SECTION 409A OF THE CODE.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY SET FORTH IN THIS SECTION 11, IN THE EVENT THAT THE
EXECUTIVE IS DETERMINED TO BE A "KEY EMPLOYEE" AS DEFINED BY SECTION 416(I) OF
THE CODE (WITHOUT REGARD TO PARAGRAPH 5), TO THE EXTENT NECESSARY TO COMPLY WITH
THE PROVISION OF SECTION 409A OF THE CODE, AND THE TREASURY REGULATIONS
THEREUNDER, ANY PAYMENTS OR DISTRIBUTIONS DUE THE EXECUTIVE UNDER THIS
11
AGREEMENT AS A RESULT OF OR FOLLOWING ANY SEPARATION FROM SERVICE SHALL NOT BE
MADE BEFORE THE DATE WHICH IS 6 MONTHS AFTER THE DATE OF SEPARATION FROM SERVICE
(OR IF EARLIER, THE DATE OF DEATH OF THE EXECUTIVE).
12.
SURVIVAL. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
NOTWITHSTANDING THE TERMINATION OF THIS AGREEMENT OR THE EXECUTIVE'S EMPLOYMENT
FOR ANY REASON, THE EXECUTIVE'S OBLIGATIONS UNDER SECTIONS 2(B), 7, 8 AND 9
HEREOF SHALL SURVIVE AND REMAIN IN FULL FORCE AND EFFECT FOR THE PERIODS THEREIN
PROVIDED, AND THE PROVISIONS FOR EQUITABLE RELIEF AGAINST THE EXECUTIVE IN
SECTION 10 HEREOF SHALL CONTINUE IN FORCE, ALONG WITH THE