BY YOU
OF SECTION 4, THE NONCOMPETE PERIOD SHALL BE TOLLED UNTIL SUCH BREACH OR
VIOLATION HAS BEEN DULY CURED.
YOU ACKNOWLEDGE THAT THE RESTRICTIONS CONTAINED
IN SECTIONS 4 AND 5 ARE REASONABLE AND THAT YOU HAVE REVIEWED THE PROVISIONS OF
THIS LETTER AGREEMENT WITH YOUR LEGAL COUNSEL.
7.
WHENEVER POSSIBLE, EACH PROVISION OF THIS LETTER AGREEMENT SHALL
BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW,
BUT IF ANY PROVISION OF THIS LETTER AGREEMENT IS HELD TO BE INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY RESPECT UNDER ANY APPLICABLE LAW OR RULE IN ANY
JURISDICTION, SUCH INVALIDITY, ILLEGALITY OR UNENFORCEABILITY SHALL NOT AFFECT
ANY OTHER PROVISION OR ANY ACTION IN ANY OTHER JURISDICTION, BUT THIS LETTER
AGREEMENT SHALL BE REFORMED, CONSTRUED AND ENFORCED IN SUCH JURISDICTION AS IF
SUCH INVALID, ILLEGAL OR UNENFORCEABLE PROVISION HAD NEVER BEEN CONTAINED
HEREIN.
4
8.
THE EXECUTIVE SEVERANCE PLAN IS INTENDED TO BE AN UNFUNDED PLAN
MAINTAINED BY THE COMPANY FOR A SELECT GROUP OF MANAGEMENT OR HIGHLY COMPENSATED
EMPLOYEES AS DESCRIBED IN THE REGULATIONS PURSUANT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED AND WILL BE INTERPRETED ACCORDINGLY.
ADMINISTRATIVE INFORMATION REGARDING THE EXECUTIVE SEVERANCE PLAN AND THE CLAIMS
PROCEDURE UNDER THE EXECUTIVE SEVERANCE PLAN IS SET FORTH IN APPENDIX A.
9.
IF, AFTER A CHANGE IN CONTROL (AS DEFINED IN THE 2004 INCENTIVE
COMPENSATION PLAN), YOU OR YOUR ESTATE OR YOUR HEIRS PREVAILS IN ANY ACTION TO
ENFORCE YOUR RIGHTS UNDER THIS LETTER AGREEMENT, YOU SHALL BE ENTITLED TO
RECEIVE YOUR ATTORNEY'S FEES, COSTS AND EXPENSES INCURRED IN ENFORCING YOUR
RIGHTS UNDER THIS LETTER AGREEMENT, AS WELL AS INTEREST AT THE PRIME RATE AS
PUBLISHED IN THE WALL STREET JOURNAL FROM TIME TO TIME ON THE AMOUNT OF THE
JUDGMENT FROM THE DATE OF DEMAND FOR PAYMENT HEREUNDER THROUGH THE DATE OF
RECEIPT OF THE AMOUNT OF THE JUDGMENT.
10.
THIS LETTER AGREEMENT, THOSE DOCUMENTS EXPRESSLY REFERRED TO
HEREIN AND OTHER DOCUMENTS OF EVEN DATE HEREWITH EMBODY THE COMPLETE AGREEMENT
AND UNDERSTANDING AMONG YOU AND THE COMPANY AND SUPERSEDE AND PREEMPT ANY PRIOR
UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS BY OR AMONG THE PARTIES, WRITTEN
OR ORAL, WHICH MAY HAVE RELATED TO THE SUBJECT MATTER HEREOF IN ANY WAY, EXCEPT
YOUR AGREEMENT DATED
, 2002 ATTACHED HERETO.
YOU HEREBY
AGREE THAT IN CONSIDERATION FOR AND SUBJECT TO THE RECEIPT OF PAYMENTS TO BE
RECEIVED UNDER THIS LETTER AGREEMENT, YOU WAIVE ANY AND ALL RIGHTS TO SEVERANCE
PAYMENTS OR BENEFITS UNDER ANY OTHER PLANS, PROGRAMS, CONTRACTS OR ARRANGEMENTS
OF THE COMPANY EXCEPT AS PROVIDED IN ANY INCENTIVE OR EQUITY GRANT.
11.
YOU AGREE TO KEEP THE TERMS, CONDITIONS AND AMOUNTS PAYABLE UNDER
THIS EXECUTIVE SEVERANCE PLAN STRICTLY CONFIDENTIAL.
FAILURE TO RESPECT THIS
CONFIDENTIALITY WILL JEOPARDIZE PARTICIPATION IN THE PLAN.
12.
IF YOU ARE REHIRED DURING THE PERIOD YOU ARE RECEIVING SEVERANCE
PAYMENTS, YOUR SEVERANCE PAYMENTS WILL STOP ON YOUR REHIRE DATE AND YOUR FUTURE
PARTICIPATION IN THE EXECUTIVE SEVERANCE PLAN WILL BE DETERMINED BY THE BOARD
BASED