THE DATE OF TERMINATION OF
COBRA CONTINUATION COVERAGE AND (2) THE PAYMENT IN FULL BY THE COMPANY OF ITS
OBLIGATIONS UNDER SECTION 3.3(B) (WITHOUT REGARD TO ANY ACCELERATION BY THE
COMPANY OF SUCH PAYMENTS), WHEREUPON EXECUTIVE SHALL BE FULLY RESPONSIBLE FOR
THE COST OF CONTINUING COVERAGE AND BENEFITS, IF ANY.
3.5.
GENERAL RELEASE AGREEMENT. THE OBLIGATIONS OF
THE COMPANY TO MAKE THE PAYMENTS AND PROVIDE THE BENEFITS DESCRIBED IN
SECTIONS 3.3 AND 3.4 ARE EXPRESSLY CONDITIONED UPON EXECUTIVE'S SIGNING AND
DELIVERING TO THE COMPANY, NOT LATER THAN THREE (3) MONTHS AFTER THE DATE OF
TERMINATION, AND THEREAFTER NOT REVOKING A VALID GENERAL RELEASE AGREEMENT IN
FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO THE COMPANY, WHICH RELEASE SHALL
INCLUDE A GENERAL RELEASE OF ALL CLAIMS AGAINST THE COMPANY, ITS DIRECTORS,
OFFICERS, AND AFFILIATES (OTHER THAN CLAIMS IN RESPECT OF FUTURE COMPANY
OBLIGATIONS UNDER THIS AGREEMENT). ANY BREACH OF EXECUTIVE'S NONDISCLOSURE,
NONSOLICITATION, OR NONCOMPETITION OBLIGATIONS TO THE COMPANY THAT HAS OR IS
REASONABLY LIKELY TO HAVE A MATERIAL AND ADVERSE EFFECT ON THE COMPANY SHALL, IN
ADDITION TO ALL OTHER REMEDIES AVAILABLE TO COMPANY, RESULT IN THE IMMEDIATE
RELEASE OF THE COMPANY FROM ANY OBLIGATION IT WOULD OTHERWISE HAVE TO MAKE
FURTHER PAYMENTS OR PROVIDE FURTHER BENEFITS UNDER THIS AGREEMENT. EXECUTIVE
EXPRESSLY ACKNOWLEDGES THAT THE COMPANY IS PREPARED TO VIGOROUSLY ENFORCE THESE
PROMISES AND THAT VIOLATION OF EXECUTIVE'S OBLIGATIONS COULD RESULT IN AN AWARD
OF DAMAGES OR OTHER LEGAL REMEDIES AGAINST EXECUTIVE AND EXECUTIVE'S SUBSEQUENT
EMPLOYERS.
3.6.
LIMITATION.
(A)
THE FOREGOING NOTWITHSTANDING, THE TOTAL OF
THE PAYMENTS MADE TO EXECUTIVE PURSUANT TO SECTIONS 3.3 AND 3.4 SHALL BE REDUCED
TO THE EXTENT THAT THE PAYMENT OF SUCH AMOUNT WOULD CAUSE EXECUTIVE'S TOTAL
TERMINATION BENEFITS (AS DETERMINED BY THE COMPANY'S TAX ADVISOR) TO CONSTITUTE
AN "EXCESS" PARACHUTE PAYMENT UNDER SECTION 280G OF THE CODE AND THEREBY SUBJECT
EXECUTIVE TO AN EXCISE TAX UNDER SECTION 4999(A) OF THE CODE, BUT ONLY IF
EXECUTIVE DETERMINES THAT THE AFTER-TAX VALUE OF THE TERMINATION BENEFITS
CALCULATED WITH THE FOREGOING REDUCTION EXCEEDS THE VALUE OF THE TERMINATION
BENEFITS CALCULATED WITHOUT THE SUCH REDUCTION. ANY SUCH REDUCTION SHALL BE
REDUCE THE CASH PAYMENTS OTHERWISE TO BE MADE TO EXECUTIVE IN REVERSE
CHRONOLOGICAL ORDER.
5
(B)
TO THE EXTENT THAT ANY CASH PAYMENTS DUE
UNDER SECTION 3.3 OR SECTION 3.4: (I) CONSTITUTE "DEFERRED COMPENSATION" SUBJECT
TO THE REQUIREMENTS OF SECTION 409A OF THE CODE, (II) ARE PAYABLE TO AN
EXECUTIVE WHO IS A "SPECIFIED EMPLOYEE" (AS DEFINED IN SECTION 409A) AS A RESULT
OF EXECUTIVE'S SEPARATION FROM SERVICE, AND (III) WOULD BE PAYABLE DURING THE
SIX (6) MONTH PERIOD FOLLOWING EXECUTIVE'S SEPARATION FROM SERVICE, SUCH
PAYMENTS SHALL BE SUSPENDED AND ACCUMULATED BY THE COMPANY AND PAID OUT TO
EXECUTIVE ON THE FIRST BUSINESS DAY FOLLOWING THE DATE THAT IS SIX (6) MONTHS
AFTER EXECUTIVE'S SEPARATION FROM SERVICE. IN DETERMINING WHETHER ANY CASH
PAYMENTS DUE UNDER SECTION 3.3 OR SECTION 3.4 ARE DEFERRED COMPENSATION WITHIN
THE MEANING OF SECTION 409A, THE PARTIES AGREE, TO THE GREATEST EXTENT POSSIBLE
UNDER THE TREASURY