(I) THE COMPANY DETERMINES IN GOOD FAITH THAT THE SEVERANCE PAYMENT CAN BE MADE
AT THAT TIME WITHOUT VIOLATING THE RESTRICTIONS UNDER SECTION 409A , OR (II) THE
SEVERANCE PAYMENT MEETS THE FOLLOWING REQUIREMENTS:
(A) The entire amount of the Severance Payment does not exceed the lesser of (I)
two times the Employees' annual compensation or (II) two times the §401(a)(17)
limit of the Code.
Each limit is determined using the compensation or
§401(a)(17) limit in the calendar year before the year in which the Termination
Date occurs, and for purposes of this exception, the Employee's annual
compensation is determined with reference to Treasury Regulation
Section 1.415-2(d)(2), which generally includes base salary and bonuses; and
(B) All amounts are paid by December 31 of the second calendar year following
the year in which the Termination Date occurs (e.g. if employment terminates in
2005, all payments must be made by December 31, 2007).
2.
RELEASE AND WAIVER.
IN RETURN FOR THE PAYMENTS AND BENEFITS PROVIDED TO THE EMPLOYEE AS SET FORTH IN
SECTION 1 ABOVE, THE EMPLOYEE AGREES TO EXECUTE THE RELEASE AND WAIVER IN THE
FORM ATTACHED AS EXHIBIT A HERETO.
FOR A PERIOD OF SEVEN DAYS AFTER THE
EMPLOYEE HAS EXECUTED SUCH RELEASE AND WAIVER, THE EMPLOYEE MAY REVOKE THE
RELEASE AND WAIVER.
THE RELEASE AND WAIVER SHALL BECOME EFFECTIVE, AND THE
SEVERANCE BENEFITS DESCRIBED IN SECTION 1 SHALL BECOME DUE, ONLY UPON THE
EXPIRATION OF THE SEVEN-DAY REVOCATION PERIOD WITHOUT REVOCATION OF THE RELEASE
AND WAIVER BY THE EMPLOYEE.
NOTWITHSTANDING THE FOREGOING, THE COMPANY AND THE
EMPLOYEE AGREE THAT THE TERMS OF THIS AGREEMENT SHALL SURVIVE THE RELEASE AND
WAIVER AND THAT CLAIMS TO ENFORCE THE TERMS OF THIS AGREEMENT ARE NOT DISCHARGED
BY THE RELEASE AND WAIVER.
3.
COOPERATION.
IN CONNECTION WITH ANY TERMINATION OF THE EMPLOYEE'S EMPLOYMENT, THE EMPLOYEE
AGREES TO COOPERATE WITH THE COMPANY IN PROMPTLY TRANSITIONING THE EMPLOYEE'S
DUTIES AND ACTIVITIES WITHIN THE COMPANY TO THE PERSON OR PERSONS DESIGNATED BY
THE COMPANY TO RECEIVE THEM.
4.
CONFIDENTIALITY; NONDISPARAGEMENT.
(A)
CONFIDENTIALITY.
THE EMPLOYEE AGREES TO KEEP THE TERMS OF THIS
AGREEMENT CONFIDENTIAL, AND AGREES NOT TO DISCLOSE THE TERMS OF THIS AGREEMENT
TO THIRD PARTIES EXCEPT TO THE EMPLOYEE'S IMMEDIATE FAMILY AND LEGAL OR
FINANCIAL ADVISERS AND EXCEPT AS REQUIRED BY LAW OR LEGAL PROCESS AND THEN ONLY
AFTER NOTICE IS GIVEN TO THE COMPANY IN ACCORDANCE WITH SECTION 6(G) BELOW SUCH
THAT, WHERE FEASIBLE, THE COMPANY WILL HAVE A REASONABLE OPPORTUNITY TO OPPOSE
DISCLOSURE.
THE EMPLOYEE UNDERSTANDS THAT ANY BREACH OF THIS CONFIDENTIALITY
PROVISION WILL CONSTITUTE GROUNDS FOR TERMINATION BY THE COMPANY OF THE
EMPLOYEE'S EMPLOYMENT FOR CAUSE AS DEFINED IN SECTION 7(A).
(B)
NONDISPARAGEMENT.
THE EMPLOYEE AGREES NOT TO TAKE ANY ACTION OR
MAKE ANY STATEMENT, WRITTEN OR ORAL, WHICH DISPARAGES THE COMPANY, ITS OFFICERS,
OR ITS MANAGEMENT, BUSINESS OR PERSONNEL PRACTICES, OR WHICH DISRUPTS OR IMPAIRS
THE COMPANY'S NORMAL OPERATIONS.
THE PROVISIONS OF THIS SECTION 4(B) SHALL NOT
APPLY TO ANY TRUTHFUL STATEMENT REQUIRED TO BE MADE BY THE EMPLOYEE