THAT FOLLOWS THE
DATE OF SUCH TERMINATION OF EMPLOYMENT BY SIX (6) MONTHS.
(II)
FOR PURPOSES OF THIS AGREEMENT, THE PHRASE
"TERMINATION OF EMPLOYMENT" AND CORRELATIVE PHRASES MEAN A "SEPARATION FROM
SERVICE" AS DEFINED IN TREAS. REGS.§1.409A-1(H), AND THE TERM "SPECIFIED
EMPLOYEE" MEANS AN INDIVIDUAL DETERMINED BY THE COMPANY TO BE A SPECIFIED
EMPLOYEE UNDER TREAS. REGS.§1.409A-1(I).
FOR THE AVOIDANCE OF DOUBT, ANY TAX
LIABILITY TO WHICH THE EXECUTIVE IS SUBJECT UNDER SECTION 409A SHALL BE SOLELY
THE EXECUTIVE'S RESPONSIBILITY.
(III)
EACH INSTALLMENT PAYMENT TO BE PROVIDED TO
THE EXECUTIVE UNDER THIS AGREEMENT SHALL BE A SEPARATE "PAYMENT" WITHIN THE
MEANING OF
TREASURY REGULATION SECTION 1.409A-2(B)(2)(I).
(I)
POST-AGREEMENT EMPLOYMENT.
IN THE EVENT
THE EXECUTIVE REMAINS IN THE EMPLOY OF THE COMPANY OR ANY OF ITS AFFILIATES
FOLLOWING TERMINATION OF THIS AGREEMENT, WHETHER BY EXPIRATION OF THE TERM
HEREOF OR OTHERWISE, THEN SUCH EMPLOYMENT SHALL BE AT WILL.
6.
EFFECT OF TERMINATION.
THE PROVISIONS
OF THIS SECTION 6 SHALL APPLY TO ANY TERMINATION, WHETHER DUE TO THE EXPIRATION
OF THE TERM HEREOF, PURSUANT TO SECTION 5 OR OTHERWISE.
(A)
PAYMENT BY THE COMPANY OF ANY FINAL
COMPENSATION DUE TO THE EXECUTIVE AND PROVISION OF ANY SEVERANCE PAY OR ENHANCED
SEPARATION PAY AND ANY OTHER SEVERANCE BENEFITS IF DUE THE EXECUTIVE UNDER THE
APPLICABLE TERMINATION PROVISION OF SECTION 5 AND ANY ACCELERATED VESTING TO
WHICH THE EXECUTIVE IS ENTITLED UNDER SECTION 4(C)(IV) SHALL CONSTITUTE THE
ENTIRE OBLIGATION OF THE COMPANY TO THE EXECUTIVE UNDER THIS AGREEMENT.
(B)
EXCEPT FOR ANY RIGHT OF THE EXECUTIVE AND
HIS ELIGIBLE DEPENDENTS TO CONTINUE PARTICIPATION ANY MEDICAL, DENTAL OR VISION
PLAN OFFERED BY THE COMPANY IN ACCORDANCE WITH APPLICABLE LAW, THE EXECUTIVE'S
PARTICIPATION IN EMPLOYEE BENEFIT PLANS OF THE COMPANY SHALL TERMINATE PURSUANT
TO THE TERMS OF EACH APPLICABLE EMPLOYEE BENEFIT PLAN BASED ON THE DATE OF
TERMINATION WITHOUT REGARD TO SEVERANCE PAY, ENHANCED SEPARATION PAY OR PAY FOR
NOTICE PERIOD WAIVED OR ANY OTHER PAYMENT TO THE EXECUTIVE FOLLOWING THE DATE OF
TERMINATION.
(C)
PROVISIONS OF THIS AGREEMENT SHALL SURVIVE
ANY TERMINATION IF SO PROVIDED HEREIN OR IF NECESSARY OR DESIRABLE TO ACCOMPLISH
THE PURPOSES OF OTHER SURVIVING PROVISIONS, INCLUDING WITHOUT LIMITATION
SECTION 4(C)(IV) IN ACCORDANCE WITH ITS TERMS.
FURTHER, THE EMPLOYEE AGREEMENT
SHALL SURVIVE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT HOWSOEVER OCCURRING IN
ACCORDANCE WITH THE TERMS THEREOF.
THE OBLIGATION OF THE COMPANY TO MAKE
PAYMENTS OF SEVERANCE PAY OR ENHANCED SEPARATION PAY AND TO PROVIDE OTHER
SEVERANCE BENEFITS TO THE EXECUTIVE UNDER SECTION 5(D), 5(E) OR 5(G) HEREOF AND
TO PROVIDE ACCELERATED VESTING IN ACCORDANCE WITH SECTION 4(C)(IV) HEREOF IS
EXPRESSLY CONDITIONED ON THE EXECUTIVE'S CONTINUED FULL PERFORMANCE OF HIS
OBLIGATIONS UNDER THE EMPLOYEE AGREEMENT.
THE EXECUTIVE RECOGNIZES
14
THAT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5(D) OR 5(E) OR 5(G), OR IN THE
CASE OF PAYMENT FOR NOTICE WAIVED PURSUANT TO SECTION 5(F) HEREOF, OR
ACCELERATED VESTING IN ACCORDANCE WITH SECTION 4(C)(IV) HEREOF, NO COMPENSATION
IS EARNED AFTER TERMINATION OF EMPLOYMENT.
7.
CONFLICTING AGREEMENTS.
THE EXECUTIVE
HEREBY REPRESENTS AND WARRANTS THAT THE