DOES NOT OTHERWISE CONSTITUTE A TRIGGERING
EVENT, NOTWITHSTANDING THE THEN EXISTING PROVISIONS OF THE RELEVANT STOCK OPTION
AGREEMENTS, WHICH PROVISIONS ARE EXPRESSLY MODIFIED BY THIS AGREEMENT.
THE
PERIOD OF TIME DURING WHICH THE STOCK OPTIONS SHALL REMAIN EXERCISABLE, AND ALL
OTHER TERMS AND CONDITIONS OF THE STOCK OPTIONS, SHALL BE AS SPECIFIED IN THE
RELEVANT STOCK OPTION AGREEMENTS.
3.5
Mitigation.
Except as otherwise specifically provided herein,
Executive shall not be required to mitigate damages or the amount of any payment
provided under this Agreement by seeking other employment or otherwise, nor
shall the amount of any payment provided for under this Agreement be reduced by
any compensation earned by Executive as a result of employment by another
employer or by retirement benefits after the date of the Triggering Event, or
otherwise.
ARTICLE IV
LIMITATIONS AND CONDITIONS ON BENEFITS; AMENDMENT OF AGREEMENT
4.1
OTHER SEVERANCE BENEFITS; WITHHOLDING OF TAXES.
THE BENEFITS
PROVIDED UNDER THIS AGREEMENT ARE IN LIEU OF ANY OTHER BENEFIT PROVIDED UNDER
ANY EMPLOYMENT CONTRACT OR SEVERANCE PLAN OF THE COMPANY IN EFFECT AT THE TIME
OF A TRIGGERING EVENT.
THE COMPANY SHALL WITHHOLD APPROPRIATE FEDERAL, STATE OR
LOCAL INCOME AND EMPLOYMENT TAXES FROM ANY PAYMENTS HEREUNDER.
4.2
OBLIGATIONS OF EXECUTIVE.
DURING THE TERM, EXECUTIVE AGREES NOT TO
PERSONALLY SOLICIT ANY OF THE COMPANY'S EMPLOYEES TO BECOME EMPLOYED ELSEWHERE
OR PROVIDE THE NAMES OF SUCH EMPLOYEES TO ANY OTHER COMPANY WHICH EXECUTIVE HAS
REASON TO BELIEVE WILL SOLICIT SUCH EMPLOYEES.
4.3
EMPLOYEE AGREEMENT AND RELEASE PRIOR TO RECEIPT OF CERTAIN
BENEFITS.
PRIOR TO THE RECEIPT OF ANY BENEFITS UNDER SECTION 3.2 ABOVE,
EXECUTIVE SHALL EXECUTE AN EFFECTIVE EMPLOYEE AGREEMENT AND RELEASE IN THE FORM
ATTACHED HERETO AS EXHIBIT A.
SUCH EMPLOYEE AGREEMENT AND RELEASE SHALL
SPECIFICALLY RELATE TO ALL OF EXECUTIVE'S RIGHTS AND CLAIMS IN EXISTENCE AT THE
TIME OF ITS EXECUTION.
IT IS UNDERSTOOD THAT EXECUTIVE HAS TWENTY-ONE (21) DAYS
TO CONSIDER WHETHER TO EXECUTE SUCH EMPLOYEE AGREEMENT AND RELEASE AND EXECUTIVE
MAY REVOKE SUCH EMPLOYEE AGREEMENT AND RELEASE WITHIN SEVEN (7) DAYS AFTER
EXECUTION OF SUCH EMPLOYEE AGREEMENT AND RELEASE.
IF EXECUTIVE DOES NOT EXECUTE
SUCH EMPLOYEE AGREEMENT AND RELEASE WITHIN THE TWENTY-ONE (21) DAY PERIOD, OR IF
EXECUTIVE REVOKES SUCH EMPLOYEE AGREEMENT AND RELEASE WITHIN THE SEVEN (7) DAY
PERIOD, NO BENEFITS SHALL BE PAYABLE UNDER SECTION 3.2 ABOVE.
NOTHING IN THIS
AGREEMENT SHALL LIMIT THE SCOPE OR TIME OF APPLICABILITY OF SUCH EMPLOYEE
AGREEMENT AND RELEASE ONCE IT IS EXECUTED AND NOT TIMELY REVOKED.
4
4.4
CERTAIN ADDITIONAL PAYMENTS.
IF IT SHALL BE DETERMINED, EITHER BY
THE COMPANY OR BY A FINAL DETERMINATION OF THE INTERNAL REVENUE SERVICE, THAT
ANY PAYMENT OR DISTRIBUTION BY THE COMPANY TO OR FOR THE BENEFIT OF EXECUTIVE,
WHETHER PAID OR PAYABLE OR DISTRIBUTED OR DISTRIBUTABLE PURSUANT TO THE TERMS OF
THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE VALUE ASCRIBED TO OPTION
ACCELERATION PURSUANT TO SECTION 3.4 ABOVE) OR OTHERWISE (THE "PAYMENTS"), WOULD
CAUSE EXECUTIVE TO BECOME SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF
THE CODE (THE