THE CORPORATION SHALL BE OFFSET AND REDUCED BY SUCH OTHER CASH
COMPENSATION EXECUTIVE EARNS THROUGH SUCH OTHER EMPLOYMENT OR CONSULTING
ARRANGEMENTS DURING THE SEVERANCE PERIOD HEREUNDER.
SEVERANCE PAY DUE TO
EXECUTIVE HEREUNDER WILL BE MADE OVER TIME IN ACCORDANCE WITH THE CORPORATION'S
REGULAR PAYROLL SCHEDULE.
EXECUTIVE SHALL BE ENTITLED TO THE SEVERANCE PAY AND
BENEFITS SET FORTH IN THIS SECTION 12.1 ONLY IF SHE FIRST EXECUTES, RETURNS AND
DOES NOT RESCIND A RELEASE OF CLAIMS AGREEMENT AS PREPARED BY THE CORPORATION
AND IN FAVOR OF THE COMPANY.
EXECUTIVE AGREES TO IMMEDIATELY NOTIFY THE
CORPORATION
5
OF THE AMOUNT OF COMPENSATION EARNED BY HER THROUGH OTHER EMPLOYMENT,
SELF-EMPLOYMENT OR CONSULTING DURING THE SEVERANCE PERIOD HEREUNDER.
Except as provided in this Section 12.1, all compensation and benefits,
including the vesting of outstanding restricted stock or stock option awards,
provided to Executive under this Agreement shall immediately cease upon her
termination (including, but not limited to, bonus eligibility), subject to
applicable employment laws and regulations.
Notwithstanding the foregoing, if the severance payments described in this
Section 12.1 or the change of control payments described in Section 11.2 are
subject to the requirements of Code Section 409A and the Corporation determines
that Executive is a "specified employee" as defined in Code Section 409A as of
the date of the termination, such payments shall not be paid or commence earlier
than the date that is six months after the termination, but shall be paid or
commence during the calendar year following the year in which the termination
occurs and within 30 days of the earliest possible date permitted under Code
Section 409A.
12.2
IN CONSIDERATION OF EXECUTIVE'S RELEASE OF CLAIMS AS DESCRIBED IN
SECTION 12.1 OF THIS AGREEMENT, BY SIGNING THIS AGREEMENT, THE CORPORATION
AGREES TO RELEASE AND NOT TO SUE, AND FOREVER DISCHARGES EXECUTIVE OF AND FROM
ANY AND ALL MANNER OF CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, ADMINISTRATIVE
CLAIMS, LIABILITY, DAMAGES, CLAIMS FOR PUNITIVE OR LIQUIDATED DAMAGES, CLAIMS
FOR ATTORNEY'S FEES, COSTS AND DISBURSEMENTS, INDIVIDUAL OR CLASS ACTION CLAIMS,
OR DEMANDS OF ANY KIND WHATSOEVER IT HAS OR MIGHT HAVE AGAINST EXECUTIVE IN LAW
OR EQUITY, CONTRACT OR TORT, ARISING WITHIN THE SCOPE OF EXECUTIVE'S EMPLOYMENT
AT THE CORPORATION FROM THE BEGINNING OF HER EMPLOYMENT WITH THE CORPORATION
THROUGH EXECUTIVE'S TERMINATION DATE FROM THE CORPORATION.
THE CORPORATION'S
RELEASE OF CLAIMS IN THIS SECTION 12.2 SHALL NOT APPLY TO CLAIMS ARISING OUT OF
EXECUTIVE'S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
12.3
THE CORPORATION MAY TERMINATE EXECUTIVE'S EMPLOYMENT AT ANY TIME
FOR CAUSE AND AT SUCH TIME ALL COMPENSATION AND BENEFITS PROVIDED TO EXECUTIVE
UNDER THIS AGREEMENT SHALL IMMEDIATELY CEASE, SUBJECT TO APPLICABLE EMPLOYMENT
LAWS AND REGULATIONS.
12.4
THIS AGREEMENT WILL TERMINATE UPON EXECUTIVE'S DEATH OR UPON
EXECUTIVE'S DISABILITY THAT PREVENTS HER FROM PERFORMING HER ESSENTIAL JOB
FUNCTIONS UNDER THIS AGREEMENT, WITH OR WITHOUT REASONABLE ACCOMMODATION, FOR A
CONTINUOUS PERIOD OF SIX (6) MONTHS OR FOR PERIODS AGGREGATING SIX (6) MONTHS IN
ANY EIGHTEEN (18) MONTH PERIOD.
ARTICLE 13
INDEMNIFICATION AND COOPERATION
13.1
THE CORPORATION