ACKNOWLEDGES AND AGREES THAT THE COMPANY'S REMEDIES AT
LAW FOR A BREACH OR THREATENED BREACH OF ANY OF THE PROVISIONS OF
SECTION 5.4(A), (B) OR (C) WOULD BE INADEQUATE AND, IN RECOGNITION OF THIS FACT,
EXECUTIVE AGREES THAT, IN THE EVENT OF SUCH A BREACH OR THREATENED BREACH, IN
ADDITION TO ANY REMEDIES AT LAW, THE COMPANY, WITHOUT POSTING ANY BOND, SHALL BE
ENTITLED TO CEASE MAKING ANY PAYMENTS OR PROVIDING ANY BENEFIT OTHERWISE
REQUIRED BY
10
THIS AGREEMENT AND, WITH RESPECT TO A BREACH OR THREATENED BREACH OF
SECTION 5.4(A) OR (B) ONLY, OBTAIN EQUITABLE RELIEF IN THE FORM OF SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER, TEMPORARY OR PERMANENT INJUNCTION, OR
ANY OTHER EQUITABLE REMEDY THAT MAY THEN BE AVAILABLE.
5.5
EMPLOYEE RELEASE PRIOR TO RECEIPT OF BENEFITS.
UPON THE OCCURRENCE
OF A TERMINATION EVENT, AND PRIOR TO THE RECEIPT OF ANY BENEFITS UNDER THIS
AGREEMENT ON ACCOUNT OF THE OCCURRENCE OF THE TERMINATION EVENT, EXECUTIVE
SHALL, AS OF THE DATE OF THE TERMINATION EVENT, EXECUTE AN EMPLOYEE RELEASE
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A.
SUCH EMPLOYEE RELEASE
SHALL SPECIFICALLY RELATE TO ALL OF EXECUTIVE'S RIGHTS AND CLAIMS IN EXISTENCE
AT THE TIME OF SUCH EXECUTION RELATING TO EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY, BUT SHALL NOT INCLUDE (I) EXECUTIVE'S RIGHTS UNDER THIS AGREEMENT,
(II) EXECUTIVE'S RIGHTS UNDER ANY EMPLOYEE BENEFIT PLAN SPONSORED BY THE
COMPANY, (III) EXECUTIVE'S RIGHTS TO INDEMNIFICATION OR ADVANCEMENT OF EXPENSES
UNDER APPLICABLE LAW, THE COMPANY'S BYLAWS OR OTHER GOVERNING INSTRUMENTS OR ANY
AGREEMENT ADDRESSING SUCH SUBJECT MATTER BETWEEN EXECUTIVE AND THE COMPANY OR
(IV) ANY CLAIMS THAT CANNOT BE RELEASED AS A MATTER OF LAW.
IT IS UNDERSTOOD
THAT EXECUTIVE HAS 21 DAYS (OR SUCH LONGER PERIOD AS MAY BE REQUIRED BY
APPLICABLE LAW) TO CONSIDER WHETHER TO EXECUTE SUCH EMPLOYEE RELEASE AND
EXECUTIVE MAY REVOKE SUCH EMPLOYEE RELEASE WITHIN SEVEN DAYS AFTER EXECUTION OF
SUCH EMPLOYEE RELEASE.
IN THE EVENT EXECUTIVE DOES NOT EXECUTE SUCH EMPLOYEE
RELEASE WITHIN THE 21-DAY PERIOD (OR SUCH LONGER PERIOD AS MAY BE REQUIRED BY
APPLICABLE LAW), OR IF EXECUTIVE REVOKES SUCH EMPLOYEE RELEASE WITHIN THE
SEVEN-DAY PERIOD, NO BENEFITS SHALL BE PAYABLE UNDER THIS AGREEMENT AND THIS
AGREEMENT SHALL BE NULL AND VOID.
NOTHING IN THIS AGREEMENT SHALL LIMIT THE
SCOPE OR TIME OF APPLICABILITY OF SUCH EMPLOYEE RELEASE ONCE IT IS EXECUTED AND
NOT TIMELY REVOKED.
5.6
COMPLIANCE WITH SECTION 409A.
IN THE EVENT THAT (I) ONE OR MORE
PAYMENTS OF COMPENSATION OR BENEFITS (AND ANY OTHER SEVERANCE PAYMENTS OR
BENEFITS WHICH MAY BE CONSIDERED DEFERRED COMPENSATION UNDER SECTION 409A)
RECEIVED OR TO BE RECEIVED BY EXECUTIVE PURSUANT TO THIS AGREEMENT ("AGREEMENT
PAYMENT") WOULD CONSTITUTE DEFERRED COMPENSATION SUBJECT TO SECTION 409A OF THE
CODE AND THE REGULATIONS OR OTHER AUTHORITY PROMULGATED THEREUNDER, AS AMENDED
FROM TIME TO TIME ("SECTION 409A"), AND (II) EXECUTIVE IS DEEMED AT THE TIME OF
SUCH TERMINATION OF EMPLOYMENT TO BE A "SPECIFIED EMPLOYEE" UNDER
SECTION 409A(A)(2)(B)(I), THEN SUCH AGREEMENT PAYMENT SHALL NOT BE MADE OR
COMMENCE UNTIL THE EARLIER