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
7
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.
(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