POWER TO MODIFY SUCH PROVISION AND, IN ITS MODIFIED FORM, SUCH
PROVISION WILL THEN BE ENFORCEABLE.
(A)
THE PARTIES ACKNOWLEDGE THAT SIGNIFICANT DAMAGES WILL BE CAUSED BY
A BREACH OF ANY OF THE COVENANTS, BUT THAT SUCH DAMAGES WILL BE DIFFICULT TO
QUANTIFY.
THEREFORE, THE PARTIES AGREE THAT THE COMPANY SHALL HAVE THE RIGHT TO
ENFORCE SECTION 4 BY INJUNCTION, SPECIFIC PERFORMANCE OR OTHER EQUITABLE RELIEF,
WITHOUT PREJUDICE TO ANY OTHER RIGHTS AND REMEDIES THAT THE COMPANY MAY HAVE FOR
A BREACH, OR THREATENED BREACH, OF THE COVENANTS.
(2)
IN ADDITION TO THE REMEDIES SPECIFIED IN SECTION 4.F.(1)A AND ANY
OTHER RELIEF AWARDED BY ANY COURT, IF EMPLOYEE BREACHES ANY OF THE COVENANTS:
(A)
EMPLOYEE WILL BE REQUIRED TO ACCOUNT FOR AND PAY OVER TO THE
COMPANY ALL COMPENSATION, PROFITS, MONIES, ACCRUALS, INCREMENTS OR OTHER
BENEFITS DERIVED OR RECEIVED BY EMPLOYEE AS A RESULT OF ANY SUCH BREACH; AND
(B)
THE COMPANY WILL BE ENTITLED TO INJUNCTIVE OR OTHER EQUITABLE
RELIEF TO PREVENT FURTHER BREACHES OF THE COVENANTS BY EMPLOYEE.
(3)
IF EMPLOYEE BREACHES SECTION 4, THEN THE DURATION OF THE
RESTRICTION THEREIN CONTAINED WILL BE EXTENDED FOR A PERIOD EQUAL TO THE PERIOD
THAT EMPLOYEE WAS IN BREACH OF SUCH RESTRICTION.
5.
TERMINATION.
A.
EXCEPT AS SPECIFIED IN SECTIONS 5.B. AND 5.C., UPON TERMINATION
OF EMPLOYMENT, INCLUDING TERMINATION DUE TO EMPLOYEE'S DEATH, EMPLOYEE WILL BE
ENTITLED TO THE PAYMENT OF ACCRUED AND UNPAID SALARY THROUGH THE DATE OF SUCH
TERMINATION.
ALL SALARY, COMMISSIONS AND BENEFITS WILL CEASE AT THE TIME OF
SUCH TERMINATION, SUBJECT TO THE TERMS OF ANY BENEFIT PLANS THEN IN FORCE OR
ENFORCEABLE UNDER APPLICABLE LAW AND APPLICABLE TO EMPLOYEE, AND THE COMPANY
WILL HAVE NO FURTHER LIABILITY OR OBLIGATION HEREUNDER BY REASON OF SUCH
TERMINATION.
B.
IF EMPLOYEE'S EMPLOYMENT DOES NOT AUTOMATICALLY RENEW, IS
TERMINATED BY THE COMPANY WITHOUT CAUSE, IF EMPLOYEE TERMINATES FOR GOOD REASON
IN ACCORDANCE WITH SECTIONS 7.F. OR IF EMPLOYEE TERMINATES DUE TO DISABILITY,
EMPLOYEE WILL BE ENTITLED TO THE FOLLOWING:
(1)
MONTHLY PAYMENTS FOR A PERIOD OF 18 MONTHS FOLLOWING THE
TERMINATION DATE IN AN AMOUNT EQUAL TO THE QUOTIENT OBTAINED BY DIVIDING (X) THE
SUM OF (A) 1.5 TIMES THE BASE SALARY PAID IN THE 12-MONTH PERIOD PRECEDING THE
TERMINATION DATE AND (B) THE TOTAL CASH BONUS PAID PURSUANT TO SECTIONS 3.A.(3)
AND (4) IN THE 12-MONTH PERIOD PRECEDING THE TERMINATION DATE BY (Y) 18;
PROVIDED IF EMPLOYEE'S EMPLOYMENT IS TERMINATED BY THE COMPANY WITHOUT CAUSE
PRIOR TO THE FIRST ANNIVERSARY OF THE EMPLOYMENT COMMENCEMENT DATE, SUCH AMOUNT
SHALL NOT BE LESS THAN $1,000,000 PAYABLE OVER THE 18-MONTH PERIOD.
7
(2)
REIMBURSEMENT FOR COSTS INCURRED IN OBTAINING OUTPLACEMENT
SERVICES, AT A COST NOT TO EXCEED $100,000, SUBJECT TO PROVISION OF
DOCUMENTATION REASONABLY SATISFACTORY TO THE COMPANY.
(3)
MEDICAL COVERAGE FOLLOWING THE DATE OF TERMINATION UNTIL THE
EARLIER TO OCCUR OF THE EXPIRATION OF 18 MONTHS OR THE DATE ON WHICH EMPLOYEE IS
ELIGIBLE FOR COVERAGE UNDER A PLAN MAINTAINED BY A NEW EMPLOYER OR A PLAN
MAINTAINED BY