PARENT FOR
ANY REASON OTHER THAN THOSE SPECIFIED IN PARAGRAPH 5(A) ABOVE (IT BEING
UNDERSTOOD THAT A PURPORTED TERMINATION FOR CAUSE WHICH IS CONTESTED BY
EXECUTIVE AND FINALLY DETERMINED NOT TO HAVE BEEN PROPER SHALL BE TREATED AS A
TERMINATION UNDER THIS PARAGRAPH 5(D)), THEN THE EMPLOYER SHALL: (I) PAY
EXECUTIVE HIS BASE COMPENSATION EARNED, BUT UNPAID, THROUGH THE DATE EXECUTIVE
IS TERMINATED, (II) PAY EXECUTIVE A PRO-RATA BONUS FOR THE YEAR OF TERMINATION,
(III) CONTINUE TO PAY EXECUTIVE HIS BASE COMPENSATION IN EFFECT AS OF THE DATE
OF TERMINATION FOR A PERIOD FOLLOWING HIS TERMINATION (THE "SEVERANCE PERIOD")
EQUAL TO THE LESSER OF (A) EIGHTEEN (18) MONTHS OR (B) THE REMAINDER OF THE
PERIOD ENDING ON THE TERMINATION DATE, AND (IV) TO THE EXTENT ELECTED BY
EXECUTIVE, PAY FOR THE COST OF
5
(A) EXECUTIVE'S PREMIUMS FOR CONTINUATION HEALTHCARE COVERAGE UNDER
SECTION 4980B OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED ("COBRA"), AND
(B) THE PREMIUMS FOR EXEC-U-CARE® OR ANY SIMILAR EXECUTIVE MEDICAL REIMBURSEMENT
INSURANCE PLAN MAINTAINED BY THE EMPLOYER ON THE DATE EXECUTIVE'S EMPLOYMENT IS
TERMINATED, FOR THE LESSER OF (1) THE SEVERANCE PERIOD, (2) UNTIL EXECUTIVE IS
NO LONGER ELIGIBLE FOR COBRA CONTINUATION COVERAGE, OR (3) UNTIL EXECUTIVE
OBTAINS COMPARABLE HEALTHCARE BENEFITS FROM ANY OTHER EMPLOYER DURING THE
SEVERANCE PERIOD, WHEREUPON THE EMPLOYER SHALL HAVE NO FURTHER LIABILITY OR
OBLIGATION TO EXECUTIVE UNDER THIS AGREEMENT OR OTHERWISE; PROVIDED, HOWEVER,
THAT EXECUTIVE SHALL HAVE A DUTY TO MITIGATE DAMAGES AS FOLLOWS: DURING THE
SEVERANCE PERIOD, EXECUTIVE SHALL ENDEAVOR TO MITIGATE DAMAGES BY SEEKING
EMPLOYMENT WITH DUTIES AND SALARY COMPARABLE TO THOSE PROVIDED FOR HEREIN, AND
IF HE SHALL OBTAIN SUCH EMPLOYMENT, HE SHALL REIMBURSE THE EMPLOYER THE AMOUNT
OF THE COMPENSATION HE HAS RECEIVED FROM SUCH OTHER ENTITY FOR SUCH PERIOD, BUT
NOT TO EXCEED THE AMOUNT OF THE COMPENSATION THE EMPLOYER SHALL HAVE PAID HIM
FOR SUCH PERIOD.
(E)
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT FOR ANY REASON UPON
ONE-HUNDRED-TWENTY (120) DAYS WRITTEN NOTICE TO THE PARENT.
IF EXECUTIVE
TERMINATES HIS EMPLOYMENT PURSUANT TO THIS PARAGRAPH 5(E), THE EMPLOYER SHALL
PAY EXECUTIVE THE BASE COMPENSATION EARNED THROUGH THE DATE OF TERMINATION,
WHEREUPON THE EMPLOYER SHALL HAVE NO FURTHER LIABILITY OR OBLIGATION TO
EXECUTIVE UNDER THIS AGREEMENT OR OTHERWISE.
(F)
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE PAYMENTS SET FORTH IN
THIS SECTION 5 CONSTITUTE LIQUIDATED DAMAGES FOR TERMINATION OF HIS EMPLOYMENT
DURING THE EMPLOYMENT PERIOD AND SUCH LIQUIDATED DAMAGES SHALL BE HIS ONLY
REMEDY WITH RESPECT TO ANY CLAIM, INCLUDING, WITHOUT LIMITATION, BREACH OF
CONTACT, HE MAY HAVE UNDER THIS AGREEMENT AND THAT PRIOR TO RECEIVING ANY SUCH
PAYMENTS UNDER SECTION 5 AND AS A MATERIAL CONDITION THEREOF, EXECUTIVE SHALL
SIGN AND AGREE TO BE BOUND BY A GENERAL RELEASE OF CLAIMS AGAINST THE EMPLOYER
RELATED TO EXECUTIVE'S EMPLOYMENT (AND TERMINATION OF EMPLOYMENT) WITH THE
EMPLOYER IN SUBSTANTIALLY THE FORM AS ATTACHED HERETO AS EXHIBIT A AS MAY BE
MODIFIED BY THE EMPLOYER IN GOOD FAITH TO REFLECT CHANGES IN LAW OR ITS
EMPLOYMENT PRACTICES.
NOTWITHSTANDING ANY