MR. BARBERICH'S SEPARATION FROM SERVICE OCCURS; AND
(B)
EACH INSTALLMENT OF THE PAYMENTS AND BENEFITS DUE UNDER SECTION 2
THAT IS NOT PAID WITHIN THE SHORT-TERM DEFERRAL PERIOD AND THAT WOULD, ABSENT
THIS SUBSECTION, BE PAID WITHIN THE SIX-MONTH PERIOD FOLLOWING THE "SEPARATION
FROM SERVICE" OF MR. BARBERICH FROM THE COMPANY SHALL NOT BE PAID UNTIL THE DATE
THAT IS SIX MONTHS AND ONE DAY AFTER SUCH SEPARATION FROM SERVICE (OR, IF
EARLIER, MR. BARBERICH'S DEATH), WITH ANY SUCH INSTALLMENTS THAT ARE REQUIRED TO
BE DELAYED BEING ACCUMULATED DURING THE SIX-MONTH PERIOD AND PAID IN A LUMP SUM
ON THE DATE THAT IS SIX MONTHS AND ONE DAY FOLLOWING MR. BARBERICH'S SEPARATION
FROM SERVICE AND ANY SUBSEQUENT INSTALLMENTS, IF ANY, BEING PAID IN ACCORDANCE
WITH THE DATES AND TERMS SET FORTH HEREIN.
B.
THE DETERMINATION OF WHETHER AND WHEN A SEPARATION FROM SERVICE
HAS OCCURRED SHALL BE MADE AND IN A MANNER CONSISTENT WITH, AND BASED ON THE
PRESUMPTIONS SET FORTH IN, TREASURY REGULATION SECTION 1.409A-1(H).
C.
ALL REIMBURSEMENTS AND IN-KIND BENEFITS PROVIDED UNDER THE
AGREEMENT SHALL BE MADE OR PROVIDED IN ACCORDANCE WITH THE REQUIREMENTS OF
SECTION 409A TO THE EXTENT THAT SUCH REIMBURSEMENTS OR IN-KIND BENEFITS ARE
SUBJECT TO SECTION 409A.
D.
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO
LIABILITY TO MR. BARBERICH OR ANY OTHER PERSON IF ANY PROVISIONS OF THIS
AGREEMENT ARE DETERMINED TO CONSTITUTE DEFERRED COMPENSATION SUBJECT TO
SECTION 409A BUT DO NOT SATISFY AN EXEMPTION FROM, OR THE CONDITIONS OF, SUCH
SECTION.
9.
HEALTH BENEFITS.
FOLLOWING THE TERM, MR. BARBERICH WILL BE
ELIGIBLE TO PARTICIPATE IN THE EXECUTIVE RETIREE HEALTH BENEFIT PROGRAM ADOPTED
BY THE BOARD OF DIRECTORS OF SEPRACOR ON FEBRUARY 27, 2007, AND AS FURTHER
DESCRIBED ON EXHIBIT C.
FOR SUCH TIME THAT MR. BARBERICH ELECTS TO PARTICIPATE
IN ANY SUCH PROGRAM, MR. BARBERICH WILL REIMBURSE SEPRACOR AT THE LESSER OF
(A) THE ACTUAL COST TO SEPRACOR FOR HIS PARTICIPATION AND (B) THE RATE
APPLICABLE TO FORMER SEPRACOR EMPLOYEES WHO ELECT COBRA HEALTH COVERAGE.
10.
COOPERATION.
DURING AND AFTER THE TERM, MR. BARBERICH AGREES
REASONABLY TO COOPERATE WITH THE COMPANY IN THE DEFENSE OR PROSECUTION OF ANY
THREATENED OR ACTUAL CLAIMS OR ACTIONS WHICH MAY BE BROUGHT BY, AGAINST OR ON
BEHALF OF THE COMPANY, ITS PREDECESSORS OR ANY OF ITS CURRENT OR FORMER
PARTNERS, AGENTS, EMPLOYEES, DIRECTORS OR AFFILIATES AND WHICH RELATE TO EVENTS
OR OCCURRENCES THAT TRANSPIRED OR ARE ALLEGED TO HAVE TRANSPIRED DURING HIS
EMPLOYMENT WITH THE COMPANY OR SERVICE AS AN ADVISOR.
SUCH COOPERATION SHALL
INCLUDE, WITHOUT IMPLICATION OF LIMITATION, BEING AVAILABLE TO MEET WITH THE
COMPANY'S COUNSEL TO PREPARE FOR DISCOVERY OR TRIAL OR AN ADMINISTRATIVE HEARING
OR GOVERNMENT INVESTIGATION OR ALTERNATIVE DISPUTE RESOLUTION PROCEDURE AND TO
TESTIFY TRUTHFULLY AS A WITNESS WHEN REASONABLY REQUESTED BY THE COMPANY AT
REASONABLE TIMES AND FOR REASONABLE TIME PERIODS.
IN THE EVENT ANY SUCH
COOPERATION IS REQUIRED FOLLOWING THE EXPIRATION OF THE TERM AND REQUIRES MORE
THAN DE MINIMIS TIME OR EFFORT, THE COMPANY AGREES TO