THE DATE OF TERMINATION OF EMPLOYMENT OR
OTHERWISE.
7.
RIGHTS IN EVENT OF TERMINATION OF EMPLOYMENT ABSENT CHANGE IN CONTROL.
(A)
IN THE EVENT THAT EMPLOYEE'S EMPLOYMENT IS INVOLUNTARILY TERMINATED
BY E&B WITHOUT CAUSE AND NO CHANGE IN CONTROL SHALL HAVE OCCURRED AT THE DATE OF
SUCH TERMINATION, E&B SHALL CONTINUE TO PAY (OR CAUSE TO BE PAID) EMPLOYEE'S
ANNUAL BASE SALARY IN EFFECT ON THE DATE OF TERMINATION FOR THE REMAINDER OF THE
THEN EXISTING EMPLOYMENT PERIOD, PAID AT THE SAME INTERVALS AS THE SALARY IS
PAYABLE UNDER SECTION 4(A) OF THIS AGREEMENT.
NOTWITHSTANDING THE PRECEDING
SENTENCE, IN THE EVENT THAT THE PAYMENTS DESCRIBED IN THE PRECEDING SENTENCE,
WHEN ADDED TO ALL OTHER AMOUNTS OR BENEFITS PROVIDED TO OR ON BEHALF OF EMPLOYEE
IN CONNECTION WITH HIS TERMINATION OF EMPLOYMENT, WOULD RESULT IN THE REDUCTION
OF TAX DEDUCTIONS UNDER CODE SECTION 280G, SUCH SUM WILL BE REDUCED
(RETROACTIVELY, IF NECESSARY) TO THE EXTENT NECESSARY TO AVOID SUCH REDUCTION.
UPON WRITTEN NOTICE TO EMPLOYEE, TOGETHER WITH CALCULATIONS OF E&B'S INDEPENDENT
AUDITORS, EMPLOYEE SHALL REMIT TO E&B THE AMOUNT OF THE REDUCTION PLUS SUCH
INTEREST AS MAY BE NECESSARY TO AVOID THE IMPOSITION OF SUCH EXCISE TAX.
(B)
EMPLOYEE SHALL NOT BE REQUIRED TO MITIGATE THE AMOUNT OF ANY PAYMENT
PROVIDED FOR IN THIS SECTION 7 BY SEEKING OTHER EMPLOYMENT OR OTHERWISE.
THE
AMOUNT OF PAYMENT OR THE BENEFIT PROVIDED FOR IN THIS SECTION 7 SHALL NOT BE
REDUCED BY ANY COMPENSATION EARNED BY EMPLOYEE AS THE RESULT OF EMPLOYMENT BY
ANOTHER EMPLOYER OR BY REASON OF EMPLOYEE'S RECEIPT OF OR RIGHT TO RECEIVE ANY
RETIREMENT OR OTHER BENEFITS AFTER THE DATE OF TERMINATION OF EMPLOYMENT OR
OTHERWISE.
(C)
THE AMOUNTS PAYABLE PURSUANT TO THIS SECTION 7 SHALL CONSTITUTE
EMPLOYEE'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF INVOLUNTARY TERMINATION OF
EMPLOYEE'S EMPLOYMENT BY E&B IN THE ABSENCE OF A CHANGE IN CONTROL.
8
(D)
SEVERANCE BENEFITS PAID PURSUANT TO SECTION 7(A) ABOVE, TO THE EXTENT
OF PAYMENTS MADE FROM THE DATE OF TERMINATION OF THE EMPLOYEE'S EMPLOYMENT
THROUGH MARCH 15TH OF THE CALENDAR YEAR FOLLOWING SUCH TERMINATION, ARE INTENDED
TO CONSTITUTE SEPARATE PAYMENTS FOR PURPOSES OF SECTION 1.409A-2(B)(2) OF THE
TREASURY REGULATIONS AND THUS PAYABLE PURSUANT TO THE "SHORT-TERM DEFERRAL"
RULE SET FORTH IN SECTION 1.409A-1(B)(4) OF THE TREASURY REGULATIONS; TO THE
EXTENT SUCH PAYMENTS ARE MADE FOLLOWING SAID MARCH 15TH, THEY ARE INTENDED TO
CONSTITUTE SEPARATE PAYMENTS FOR PURPOSES OF SECTION 1.409A-2(B)(2) OF THE
TREASURY REGULATIONS MADE UPON AN INVOLUNTARY TERMINATION FROM SERVICE AND
PAYABLE PURSUANT TO SECTION 1.409A-1(B)(9)(III) OF THE TREASURY REGULATIONS, TO
THE MAXIMUM EXTENT PERMITTED BY SAID PROVISION. NOTWITHSTANDING THE FOREGOING,
IF COMPANY OR E&B DETERMINES THAT ANY OTHER PAYMENTS HEREUNDER FAIL TO SATISFY
THE DISTRIBUTION REQUIREMENT OF SECTION 409A(A)(2)(A) OF THE CODE, THE PAYMENT
OF SUCH BENEFIT SHALL BE DELAYED TO THE MINIMUM EXTENT NECESSARY SO THAT SUCH
PAYMENTS ARE NOT SUBJECT TO THE PROVISIONS OF SECTION 409A(A)(1) OF THE CODE.
8.
COVENANT NOT TO COMPETE.
(A)
EMPLOYEE HEREBY ACKNOWLEDGES AND RECOGNIZES THE HIGHLY