BE
APPROVED BY NOT LESS THAN 2/3RDS OF THE DIRECTORS THEN IN OFFICE.
8
ARTICLE V
LIMITATIONS AND CONDITIONS ON BENEFITS
5.1
RIGHT TO BENEFITS.
IF A TERMINATION EVENT
DOES NOT OCCUR, EXECUTIVE SHALL NOT BE ENTITLED TO RECEIVE ANY BENEFITS
DESCRIBED IN THIS AGREEMENT, EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN.
IF A TERMINATION EVENT OCCURS, EXECUTIVE SHALL BE ENTITLED TO RECEIVE THE
BENEFITS DESCRIBED IN THIS AGREEMENT ONLY IF EXECUTIVE COMPLIES WITH THE
RESTRICTIONS AND LIMITATIONS SET FORTH IN THIS ARTICLE V.
5.2
NO 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 TERMINATION EVENT, OR OTHERWISE.
5.3
WITHHOLDING TAXES.
THE COMPANY SHALL WITHHOLD
APPROPRIATE FEDERAL, STATE, LOCAL OR FOREIGN INCOME, EMPLOYMENT AND OTHER
APPLICABLE TAXES FROM ANY PAYMENTS HEREUNDER.
5.4
OBLIGATIONS OF EXECUTIVE.
(A)
FOR TWO YEARS FOLLOWING A TERMINATION EVENT, EXECUTIVE AGREES NOT
TO PERSONALLY SOLICIT ANY OF THE EMPLOYEES EITHER OF THE COMPANY OR OF ANY
ENTITY IN WHICH THE COMPANY DIRECTLY OR INDIRECTLY POSSESSES THE ABILITY TO
DETERMINE THE VOTING OF 50% OR MORE OF THE VOTING SECURITIES OF SUCH ENTITY
(INCLUDING TWO-PARTY JOINT VENTURES IN WHICH EACH PARTY POSSESSES 50% OF THE
TOTAL VOTING POWER OF THE ENTITY) TO BECOME EMPLOYED ELSEWHERE OR PROVIDE THE
NAMES OF SUCH EMPLOYEES TO ANY OTHER COMPANY THAT EXECUTIVE HAS REASON TO
BELIEVE WILL SOLICIT SUCH EMPLOYEES.
(B)
FOLLOWING THE OCCURRENCE OF A TERMINATION EVENT, EXECUTIVE AGREES
TO CONTINUE TO SATISFY HIS/HER OBLIGATIONS UNDER THE TERMS OF THE COMPANY'S
STANDARD FORM OF AGREEMENT REGARDING CONFIDENTIAL INFORMATION AND PROPRIETARY
DEVELOPMENT PREVIOUSLY EXECUTED BY EXECUTIVE (OR ANY COMPARABLE AGREEMENT
SUBSEQUENTLY EXECUTED BY EXECUTIVE IN SUBSTITUTION OR SUPPLEMENT THERETO).
(C)
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE COMPANY'S REMEDIES AT
LAW FOR A BREACH OR THREATENED BREACH OF ANY OF THE PROVISIONS OF
SECTION 5.4(A) OR (B) WOULD BE INADEQUATE AND, IN RECOGNITION OF THIS FACT,
EXECUTIVE AGREES THAT, IN THE EVENT OF SUCH A BREACH OR THREATENED BREACH, IN
ADDITION TO ANY REMEDIES AT LAW, THE COMPANY, WITHOUT POSTING ANY BOND, SHALL BE
ENTITLED TO CEASE MAKING ANY PAYMENTS OR PROVIDING ANY BENEFIT OTHERWISE
REQUIRED BY THIS AGREEMENT AND, WITH RESPECT TO A BREACH OR THREATENED BREACH OF
SECTION 5.4(A) OR (B) ONLY, OBTAIN EQUITABLE RELIEF IN THE FORM OF SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER, TEMPORARY OR PERMANENT INJUNCTION, OR
ANY OTHER EQUITABLE REMEDY THAT MAY THEN BE AVAILABLE.
9
5.5
EMPLOYEE RELEASE PRIOR TO RECEIPT OF
BENEFITS.
UPON THE OCCURRENCE OF A TERMINATION EVENT, AND PRIOR TO THE RECEIPT
OF ANY BENEFITS UNDER THIS AGREEMENT ON ACCOUNT OF THE OCCURRENCE OF THE
TERMINATION EVENT, EXECUTIVE SHALL EXECUTE AND NOT REVOKE AN EMPLOYEE RELEASE
SUBSTANTIALLY IN THE FORM ATTACHED