SUCH BONUSES, SUCH CALCULATION SHALL BE MADE ASSUMING EXECUTIVE EARNED A BONUS
FOR ANY SUCH YEAR AT A TARGET LEVEL OF PERFORMANCE (TAKING INTO ACCOUNT ANY
MINIMUM
8
BONUS AMOUNT)); (D) PROVIDE TO THE EXECUTIVE FOR 18 MONTHS FOLLOWING THE DATE OF
HIS TERMINATION PAYMENT OF COBRA PREMIUMS FOR MEDICAL, DENTAL, AND VISION
BENEFITS PURSUANT TO PLANS MAINTAINED BY THE COMPANY UNDER WHICH EXECUTIVE
AND/OR EXECUTIVE'S FAMILY IS ELIGIBLE TO RECEIVE BENEFITS; PROVIDED, HOWEVER,
THAT, NOTWITHSTANDING THE FOREGOING, THE BENEFITS DESCRIBED IN THIS SUBSECTION
MAY BE DISCONTINUED PRIOR THE END OF THE PERIOD, BUT ONLY TO THE EXTENT, THAT
EXECUTIVE RECEIVES SUBSTANTIALLY SIMILAR BENEFITS FROM A SUBSEQUENT EMPLOYER;
AND (E) PERMIT EXECUTIVE TO EXERCISE THE STOCK OPTION PORTION OF THE INITIAL
GRANT FOR A PERIOD OF NO LESS THAN SIX MONTHS AFTER THE DATE OF TERMINATION.
5.4
TERMINATION FOLLOWING A CHANGE IN CONTROL.
IN THE EVENT THE EXECUTIVE'S EMPLOYMENT IS TERMINATED PURSUANT TO SECTION 4.7 BY
THE COMPANY OR BY THE EXECUTIVE WITHIN 24 MONTHS FOLLOWING THE CHANGE IN CONTROL
DATE AS DEFINED IN THE ERA, THE EXECUTIVE WILL BE ENTITLED TO THE BENEFITS SET
FORTH IN THE ERA IN ACCORDANCE WITH THE TERMS OF THE ERA.
5.5
SIX MONTH DELAY.
IF ANY PAYMENT,
COMPENSATION OR OTHER BENEFIT PROVIDED TO THE EXECUTIVE IN CONNECTION WITH HIS
EMPLOYMENT TERMINATION IS DETERMINED, IN WHOLE OR IN PART, TO CONSTITUTE
"NONQUALIFIED DEFERRED COMPENSATION" WITHIN THE MEANING OF SECTION 409A AND THE
EXECUTIVE IS A SPECIFIED EMPLOYEE AS DEFINED IN SECTION 409A(A)(2)(B)(I), NO
PART OF SUCH PAYMENTS SHALL BE PAID BEFORE THE DAY THAT IS SIX (6) MONTHS PLUS
ONE (1) DAY AFTER THE DATE OF TERMINATION (THE "NEW PAYMENT DATE").
IN THE CASE
OF WELFARE BENEFIT CONTINUATION, THE COMPANY SHALL USE ITS BEST EFFORTS TO
ENABLE EXECUTIVE TO OBTAIN SUCH BENEFITS AT EXECUTIVE'S EXPENSE PRIOR TO THE NEW
PAYMENT DATE.
THE AGGREGATE OF ANY PAYMENTS THAT OTHERWISE WOULD HAVE BEEN PAID
TO THE EXECUTIVE (OR ON EXECUTIVE'S BEHALF) DURING THE PERIOD BETWEEN THE DATE
OF TERMINATION AND THE NEW PAYMENT DATE SHALL BE PAID TO THE EXECUTIVE IN A LUMP
SUM ON SUCH NEW PAYMENT DATE.
THEREAFTER, ANY PAYMENTS THAT REMAIN OUTSTANDING
AS OF THE DAY IMMEDIATELY
9
FOLLOWING THE NEW PAYMENT DATE SHALL BE PAID WITHOUT DELAY OVER THE TIME PERIOD
ORIGINALLY SCHEDULED, IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
6.
NON-COMPETITION AND NON-SOLICITATION.
(A)
WHILE THE EXECUTIVE IS EMPLOYED BY THE
COMPANY AND FOR A PERIOD OF TWELVE (12) MONTHS FOLLOWING THE EXECUTIVE'S
TERMINATION OR CESSATION OF SUCH EMPLOYMENT FOR ANY REASON, THE EXECUTIVE WILL
NOT DIRECTLY OR INDIRECTLY:
(I)
ENGAGE IN ANY BUSINESS OR ENTERPRISE
(WHETHER AS AN OWNER, PARTNER, OFFICER, EMPLOYEE, DIRECTOR, INVESTOR, LENDER,
CONSULTANT, INDEPENDENT CONTRACTOR OR OTHERWISE, EXCEPT AS THE HOLDER OF NOT
MORE THAN 5% OF THE COMBINED VOTING POWER OF THE OUTSTANDING STOCK OF A PUBLICLY
HELD COMPANY) THAT (A) IS COMPETITIVE WITH THE COMPANY'S BUSINESS AND
(B) DEVELOPS, DESIGNS, PRODUCES, MARKETS, SELLS OR RENDERS ANY PRODUCT OR
SERVICE COMPETITIVE WITH ANY