CORPORATION'S CAPITAL STOCK OUTSTANDING.
FURTHER, IF THE
EMPLOYEE NOTIFIES THE CEO OR THE BOARD IN WRITING ABOUT POTENTIAL EMPLOYMENT
THAT MAY BE CONSTRUED AS IN COMPETITION, THE CEO
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or Board agrees to consider in good faith whether such potential employment may
be construed as in Competition and to notify Employee of its determination in
writing or by e-mail within a reasonable period of time.
(B)
NON-SOLICITATION.
UNTIL THE DATE 12 MONTHS
AFTER THE TERMINATION OF EMPLOYEE'S EMPLOYMENT HEREUNDER FOR ANY REASON,
EMPLOYEE AGREES AND ACKNOWLEDGES THAT EMPLOYEE'S RIGHT TO RECEIVE THE SEVERANCE
PAYMENTS SET FORTH IN SECTION 5 (TO THE EXTENT EMPLOYEE IS OTHERWISE ENTITLED TO
SUCH PAYMENTS) SHALL BE CONDITIONED UPON EMPLOYEE NOT EITHER DIRECTLY OR
INDIRECTLY SOLICITING, INDUCING, RECRUITING OR ENCOURAGING AN EMPLOYEE TO LEAVE
HIS OR HER EMPLOYMENT EITHER FOR EMPLOYEE OR FOR ANY OTHER ENTITY OR PERSON WITH
WHICH OR WHOM EMPLOYEE HAS A BUSINESS RELATIONSHIP.
(C)
UNDERSTANDING OF COVENANTS.
EMPLOYEE
REPRESENTS THAT HE (I) IS FAMILIAR WITH THE FOREGOING COVENANTS NOT TO COMPETE
AND NOT TO SOLICIT, AND (II) IS FULLY AWARE OF HIS OBLIGATIONS HEREUNDER,
INCLUDING, WITHOUT LIMITATION, THE REASONABLENESS OF THE LENGTH OF TIME, SCOPE
AND GEOGRAPHIC COVERAGE OF THESE COVENANTS.
(D)
REMEDY FOR BREACH.
UPON ANY BREACH OF THIS
SECTION BY EMPLOYEE, ALL SEVERANCE PAYMENTS PURSUANT TO SECTION 5 SHALL
IMMEDIATELY CEASE, AND THAT SHALL BE THE SOLE REMEDY AVAILABLE TO THE COMPANY
FOR SUCH BREACH.
7.
ATTORNEY FEES, COSTS AND EXPENSES.
WITH RESPECT TO ANY CHANGE OF CONTROL SEVERANCE TERMINATION ONLY, THE COMPANY
SHALL REIMBURSE EMPLOYEE FOR THE REASONABLE ATTORNEY FEES, COSTS AND EXPENSES
INCURRED BY THE EMPLOYEE IN CONNECTION WITH ANY ACTION BROUGHT BY EMPLOYEE TO
ENFORCE HIS RIGHTS HEREUNDER, PROVIDED SUCH ACTION IS NOT DECIDED IN FAVOR OF
THE COMPANY.
8.
LIMITATION ON PAYMENTS.
(A)
IN THE EVENT THAT THE SEVERANCE AND OTHER
BENEFITS PROVIDED FOR IN THIS AGREEMENT OR OTHERWISE PAYABLE TO THE EMPLOYEE
(I) CONSTITUTE "PARACHUTE PAYMENTS" WITHIN THE MEANING OF SECTION 280G OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AND (II) BUT FOR THIS
SECTION 8, WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE
CODE, THEN THE EMPLOYEE'S SEVERANCE BENEFITS UNDER THIS AGREEMENT SHALL BE
EITHER
(A)
delivered in full, or
(B)
delivered as to such lesser extent which
would result in no portion of such severance benefits being subject to excise
tax under Section 4999 of the Code,
whichever of the foregoing amounts, taking into account the applicable federal,
state and local income taxes and the excise tax imposed by Section 4999, results
in the receipt by the Employee on an after-tax basis, of the greatest amount of
severance benefits, notwithstanding that all or some portion of such severance
benefits may be taxable under Section 4999 of the Code.
Any taxes due under
Section 4999 shall be the responsibility of the employee.
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(B)
IF A REDUCTION IN THE PAYMENTS AND BENEFITS
THAT WOULD OTHERWISE BE PAID OR PROVIDED TO THE EMPLOYEE UNDER