Section 409A of the Code). In addition, if any provision of this Agreement
would cause Employee to incur any accelerated or additional tax under Section
409A of the Code, the Company may reform such provision to maintain to the
extent practicable the original intent of the applicable provision without
resulting in the accelerated or additional tax. The provisions of this Section
3.5 shall only apply to the extent required to avoid Employee's incurrence of
any accelerated or additional tax under Section 409A of the Code.
ARTICLE IV.
LIMITATIONS AND CONDITIONS ON BENEFITS; AMENDMENT OF AGREEMENT
4.1
REDUCTION IN PAYMENTS AND BENEFITS; WITHHOLDING TAXES. THE BENEFITS
PROVIDED UNDER THIS AGREEMENT ARE IN LIEU OF ANY BENEFIT PROVIDED UNDER ANY
OTHER SEVERANCE PLAN, PROGRAM OR ARRANGEMENT OF THE COMPANY IN EFFECT AT THE
TIME OF AN INVOLUNTARY TERMINATION WITHOUT CAUSE. FURTHERMORE, TO THE EXTENT
THAT ANY FEDERAL, STATE OR LOCAL LAWS, INCLUDING, WITHOUT LIMITATION, SO-CALLED
"PLANT CLOSING" LAWS, REQUIRE THE COMPANY TO GIVE ADVANCE NOTICE OR MAKE A
PAYMENT OF ANY KIND TO EMPLOYEE BECAUSE OF HIS OR HER INVOLUNTARY TERMINATION
DUE TO A LAYOFF, REDUCTION IN FORCE, PLANT OR FACILITY CLOSING, SALE OF
BUSINESS, CHANGE OF CONTROL, OR ANY OTHER SIMILAR EVENT OR REASON, THE BENEFITS
PAYABLE UNDER THIS AGREEMENT SHALL EITHER BE REDUCED OR ELIMINATED. THE BENEFITS
PROVIDED UNDER THIS AGREEMENT ARE INTENDED TO SATISFY ANY AND ALL STATUTORY
OBLIGATIONS THAT MAY ARISE OUT OF EMPLOYEE'S INVOLUNTARY TERMINATION OF
EMPLOYMENT FOR THE FOREGOING REASONS, AND THE COMPANY SHALL SO CONSTRUE AND
IMPLEMENT THE TERMS OF THIS AGREEMENT. THE COMPANY SHALL WITHHOLD APPROPRIATE
FEDERAL, STATE OR LOCAL INCOME, EMPLOYMENT AND OTHER APPLICABLE TAXES FROM ANY
PAYMENTS HEREUNDER.
4.2
OBLIGATIONS OF THE EMPLOYEE.
(A)
FOR TWO YEARS FOLLOWING THE INVOLUNTARY TERMINATION WITHOUT CAUSE,
EMPLOYEE AGREES NOT TO PERSONALLY SOLICIT ANY OF THE THEN-CURRENT EMPLOYEES
EITHER OF THE COMPANY OR OF ANY ENTITY IN WHICH THE COMPANY DIRECTLY OR
INDIRECTLY POSSESSES THE ABILITY TO DETERMINE THE VOTING OF 50% OR MORE OF THE
VOTING SECURITIES OF SUCH ENTITY (INCLUDING TWO-PARTY JOINT VENTURES IN WHICH
EACH PARTY POSSESSES 50% OF THE TOTAL VOTING POWER OF THE ENTITY) TO BECOME
EMPLOYED ELSEWHERE OR PROVIDE THE NAMES OF SUCH EMPLOYEES TO ANY OTHER COMPANY
THAT EMPLOYEE HAS REASON TO BELIEVE WILL SOLICIT SUCH EMPLOYEES.
(B)
FOLLOWING THE OCCURRENCE OF AN INVOLUNTARY TERMINATION WITHOUT
CAUSE, EMPLOYEE AGREES TO CONTINUE TO SATISFY HIS OBLIGATIONS TO THE COMPANY
WITH RESPECT TO THE TREATMENT OF THE COMPANY'S CONFIDENTIAL AND PROPRIETARY
INFORMATION. EMPLOYEE'S OBLIGATIONS UNDER THIS SECTION 4.2(B) SHALL NOT BE
LIMITED TO THE TERM OF THIS AGREEMENT.
(C)
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ALTHOUGH EMPLOYEE AND
THE COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN THIS SECTION 4 TO BE
REASONABLE, IF A FINAL JUDICIAL DETERMINATION IS MADE BY A COURT OF COMPETENT
JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER RESTRICTION CONTAINED IN
THIS AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST EMPLOYEE, THE PROVISIONS
OF THIS AGREEMENT SHALL NOT BE RENDERED VOID, BUT SHALL BE DEEMED AMENDED TO
APPLY