THROUGH THE DATE EXECUTIVE
IS TERMINATED, (II)
CONTINUE TO PAY EXECUTIVE HER BASE COMPENSATION IN EFFECT
AS OF THE DATE OF TERMINATION FOR A PERIOD FOLLOWING HER TERMINATION (THE
"SEVERANCE PERIOD") EQUAL TO THE LESSER OF (A) EIGHTEEN (18) MONTHS OR (B) THE
REMAINDER OF THE PERIOD ENDING ON THE TERMINATION DATE, AND (III) TO THE EXTENT
ELECTED BY EXECUTIVE, PAY FOR THE COST OF (A) EXECUTIVE'S PREMIUMS FOR
CONTINUATION HEALTHCARE COVERAGE UNDER SECTION 4980B OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED ("COBRA"), AND (B) THE PREMIUMS FOR EXEC-U-CARE® OR ANY
SIMILAR EXECUTIVE MEDICAL REIMBURSEMENT INSURANCE PLAN MAINTAINED BY EMPLOYER ON
THE DATE EXECUTIVE'S EMPLOYMENT IS TERMINATED, FOR THE LESSER OF (1) THE
SEVERANCE PERIOD, (2) UNTIL EXECUTIVE IS NO LONGER ELIGIBLE FOR COBRA
CONTINUATION COVERAGE, OR (3) UNTIL EXECUTIVE OBTAINS COMPARABLE HEALTHCARE
BENEFITS FROM ANY OTHER EMPLOYER DURING THE SEVERANCE PERIOD, WHEREUPON EMPLOYER
SHALL HAVE NO FURTHER LIABILITY OR OBLIGATION TO EXECUTIVE UNDER THIS AGREEMENT
OR OTHERWISE; PROVIDED, HOWEVER, THAT EXECUTIVE SHALL HAVE A DUTY TO MITIGATE
DAMAGES AS FOLLOWS: DURING THE SEVERANCE PERIOD, EXECUTIVE SHALL ENDEAVOR TO
MITIGATE DAMAGES BY SEEKING EMPLOYMENT WITH DUTIES AND SALARY COMPARABLE TO
THOSE PROVIDED FOR HEREIN, AND IF SHE SHALL OBTAIN SUCH EMPLOYMENT, SHE SHALL
REIMBURSE EMPLOYER THE AMOUNT OF THE COMPENSATION SHE HAS RECEIVED FROM SUCH
OTHER ENTITY FOR SUCH PERIOD, BUT NOT TO EXCEED THE AMOUNT OF THE COMPENSATION
EMPLOYER SHALL HAVE PAID HER FOR SUCH PERIOD.
(D)
EXECUTIVE MAY TERMINATE HER EMPLOYMENT FOR
ANY REASON UPON ONE-HUNDRED-TWENTY (120) DAYS WRITTEN NOTICE TO PARENT.
IF
EXECUTIVE TERMINATES HER EMPLOYMENT PURSUANT TO THIS PARAGRAPH 5(D), EMPLOYER
SHALL PAY EXECUTIVE THE BASE COMPENSATION EARNED THROUGH THE DATE OF
TERMINATION, WHEREUPON EMPLOYER SHALL HAVE NO FURTHER LIABILITY OR OBLIGATION TO
EXECUTIVE UNDER THIS AGREEMENT OR OTHERWISE.
3
(E)
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE
PAYMENTS SET FORTH IN THIS SECTION 5 CONSTITUTE LIQUIDATED DAMAGES FOR
TERMINATION OF HER EMPLOYMENT DURING THE EMPLOYMENT TERM AND SUCH LIQUIDATED
DAMAGES SHALL BE HER ONLY REMEDY WITH RESPECT TO ANY CLAIM, INCLUDING, WITHOUT
LIMITATION, BREACH OF CONTRACT, SHE MAY HAVE UNDER THIS AGREEMENT AND THAT PRIOR
TO RECEIVING ANY SUCH PAYMENTS UNDER SECTION 5 AND AS A MATERIAL CONDITION
THEREOF, EXECUTIVE SHALL SIGN AND AGREE TO BE BOUND BY A GENERAL RELEASE OF
CLAIMS AGAINST EMPLOYER RELATED TO EXECUTIVE'S EMPLOYMENT (AND TERMINATION OF
EMPLOYMENT) WITH EMPLOYER IN SUBSTANTIALLY THE FORM AS ATTACHED HERETO AS
EXHIBIT A AS MAY BE MODIFIED BY EMPLOYER IN GOOD FAITH TO REFLECT CHANGES IN LAW
OR ITS EMPLOYMENT PRACTICES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT TO THE CONTRARY, EXECUTIVE ACKNOWLEDGES AND AGREES THAT OTHER THAN ANY
CLAIM FOR THE LIQUIDATED DAMAGES CONTEMPLATED HEREUNDER, SHE WAIVES ANY RIGHTS
TO BE AWARDED ANY OTHER DAMAGES WITH RESPECT TO ANY CLAIM SHE MAY HAVE UNDER
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY OR PUNITIVE DAMAGES.
6.
Restrictive Covenants.
(a)
Executive acknowledges that:
(i) as a
result of Executive's employment
with Employer, she will obtain secret,
proprietary and confidential information concerning the business