RESULT IN A
CHANGE IN CONTROL; OR (2) THE ANNOUNCEMENT BY ANY PERSON OF AN INTENTION TO TAKE
ACTIONS WHICH MIGHT REASONABLY RESULT IN A CHANGE IN CONTROL; AND (B) THE CHANGE
IN CONTROL ACTUALLY OCCURS WITHIN SIX (6) MONTHS AFTER THE TERMINATION UNLESS
THE RELEVANT FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT THE POSSIBILITY
THAT A CHANGE IN CONTROL WOULD OCCUR WAS REMOTE AS OF THE DATE OF SUCH
TERMINATION.
(G)
TIMING OF CERTAIN PAYMENTS UNDER SECTION 4.
UNLESS OTHERWISE
EXPRESSLY PROVIDED IN THIS SECTION 4(G) OR IN THE OTHER PROVISIONS OF THIS
AGREEMENT, ALL PAYMENTS PURSUANT TO THIS SECTION 4 SHALL BE MADE AS SOON AS
PRACTICABLE AFTER THE TERMINATION DATE BUT IN NO EVENT LATER THAN 30 DAYS AFTER
THE TERMINATION DATE; PROVIDED, HOWEVER, THAT IF AND TO THE EXTENT NECESSARY TO
COMPLY WITH SECTION 409A(A)(2)(B)(I) OF THE CODE, AND APPLICABLE
13
ADMINISTRATIVE GUIDANCE AND REGULATIONS, A PAYMENT PURSUANT TO THIS SECTION 4
SHALL BE MADE IN A LUMP SUM ON THE DATE THAT IS SIX MONTHS PLUS ONE DAY
FOLLOWING THE TERMINATION DATE.
(H)
NO OBLIGATION TO MITIGATE.
EXECUTIVE SHALL NOT BE REQUIRED TO
SEEK OTHER EMPLOYMENT OR OTHERWISE TO MITIGATE EXECUTIVE'S DAMAGES UPON ANY
TERMINATION OF EMPLOYMENT; PROVIDED, HOWEVER, THAT, TO THE EXTENT EXECUTIVE
RECEIVES FROM A SUBSEQUENT EMPLOYER HEALTH OR OTHER INSURANCE BENEFITS
SUBSTANTIALLY SIMILAR TO THE BENEFITS REFERRED TO IN SECTION 4, ANY SUCH
BENEFITS TO BE PROVIDED BY THE COMPANY TO EXECUTIVE FOLLOWING THE TERMINATION OF
HIS EMPLOYMENT SHALL BE CORRESPONDINGLY REDUCED.
(I)
SET-OFF.
AMOUNTS REQUIRED TO BE PAID BY THE COMPANY TO EXECUTIVE
PURSUANT TO THIS AGREEMENT SHALL NOT BE SUBJECT TO OFFSET WITH RESPECT TO ANY
AMOUNTS EXECUTIVE OTHERWISE OWES THE COMPANY EXCEPT FOR ANY AMOUNTS THAT ARE
OWED TO THE COMPANY BY EXECUTIVE DUE TO HIS RECEIPT OF FUNDS AS A RESULT OF HIS
FRAUDULENT ACTIVITY.
(J)
NO OTHER BENEFITS OR COMPENSATION.
EXCEPT AS MAY BE PROVIDED
UNDER THIS AGREEMENT, UNDER ANY OTHER WRITTEN AGREEMENT BETWEEN EXECUTIVE AND
THE COMPANY, OR UNDER THE TERMS OF ANY PLAN OR POLICY APPLICABLE TO EXECUTIVE,
EXECUTIVE SHALL HAVE NO RIGHT TO RECEIVE ANY OTHER COMPENSATION FROM THE
COMPANY, OR TO PARTICIPATE IN ANY OTHER PLAN, ARRANGEMENT OR BENEFIT PROVIDED BY
THE COMPANY, WITH RESPECT TO ANY FUTURE PERIOD AFTER SUCH TERMINATION OR
RESIGNATION.
(K)
RELEASE OF EMPLOYMENT CLAIMS; COMPLIANCE WITH SECTION 5. EXECUTIVE
AGREES, AS A CONDITION TO RECEIPT OF ANY TERMINATION PAYMENTS AND BENEFITS
PROVIDED FOR IN THIS SECTION 4 (OTHER THAN THE STANDARD TERMINATION PAYMENTS),
THAT EXECUTIVE WILL EXECUTE A GENERAL RELEASE AGREEMENT, IN A FORM REASONABLY
SATISFACTORY TO THE COMPANY, RELEASING ANY AND ALL CLAIMS ARISING OUT OF
EXECUTIVE'S EMPLOYMENT (OTHER THAN ENFORCEMENT OF THIS AGREEMENT) AND EXECUTIVE
WILL NOT IN THE FUTURE SEEK EMPLOYMENT AT THE COMPANY OR ANY OF ITS SUBSIDIARIES
OR AFFILIATES.
THE COMPANY'S OBLIGATION TO MAKE ANY TERMINATION PAYMENTS AND
BENEFITS PROVIDED FOR IN THIS SECTION 4 (OTHER THAN THE STANDARD TERMINATION
PAYMENTS, ALL OF WHICH SHALL BE PAID BY THE COMPANY) SHALL IMMEDIATELY CEASE