SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
8.3.
CONDITIONS TO RECEIVE SEVERANCE PACKAGE.
EXECUTIVE WILL RECEIVE
THE SEVERANCE PACKAGE DESCRIBED ABOVE ONLY IF HE COMPLIES WITH ALL OF THE
FOLLOWING CONDITIONS AND CONTINUES TO COMPLY WITH THE FOLLOWING FOR THE DURATION
OF THE SEVERANCE PERIOD:
(A)
EXECUTIVE EXECUTES A FULL GENERAL RELEASE IN FAVOR OF THE COMPANY
(THE "GENERAL RELEASE") IN THE FORM ATTACHED HERETO AS EXHIBIT A;
(B)
EXECUTIVE REAFFIRMS IN WRITING AND COMPLIES WITH THE
NON-COMPETITION AGREEMENT IN ACCORDANCE WITH THE TERMS THEREOF.
(C)
EXECUTIVE COMPLIES WITH THE COMPANY'S THEN IN EFFECT TRADE SECRETS
POLICIES AND THE EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT (THE
"INFORMATION AND INVENTIONS AGREEMENT"), ATTACHED HERETO AS EXHIBIT B, OR ANY
FUTURE VERSION OF AN INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT BETWEEN
EXECUTIVE AND THE COMPANY IN ACCORDANCE WITH THE TERMS THEREOF.
THE COMPANY'S OBLIGATION TO MAKE PAYMENTS UNDER THIS SECTION 8 SHALL BE
SUSPENDED IF AT ANY TIME EXECUTIVE IS NOT IN COMPLIANCE WITH ANY OF THE
FOREGOING AGREEMENTS.
PAYMENTS SHALL RESUME, HOWEVER, EFFECTIVE WITH THE NEXT
PAYROLL PERIOD FOLLOWING THE DATE EXECUTIVE RESUMES COMPLIANCE WITH THE
FOREGOING AGREEMENTS.
HOWEVER, AMOUNTS THAT WOULD OTHERWISE HAVE BEEN PAYABLE
TO EXECUTIVE DURING THE PERIOD OF SUSPENSION SHALL BE PERMANENTLY FORFEITED AND,
IN ANY EVENT, ALL PAYMENTS SHALL CEASE AT THE CONCLUSION OF THE "SEVERANCE
PERIOD."
SIMILARLY, THE EXECUTIVE'S OBLIGATIONS, PURSUANT TO THIS SECTION 8, TO
COMPLY WITH THE COVENANTS SET FORTH IN SECTION 2.1(A) OF THE NON-COMPETITION
AGREEMENT SHALL CEASE IF AT ANY TIME THE COMPANY SHALL FAIL TO PAY EXECUTIVE THE
SEVERANCE PAYMENT TO WHICH EXECUTIVE IS ENTITLED PURSUANT TO THIS SECTION 8 FOR
A PERIOD OF THIRTY (30) DAYS AFTER SUCH PAYMENT IS DUE.
9.
SECTION 409A OF THE U.S. INTERNAL REVENUE CODE.
9.1.
THE SPECIFIED EMPLOYEE RULE.
TO THE EXTENT ANY AMOUNT PAYABLE
UNDER THIS AGREEMENT REPRESENTS A PAYMENT UNDER A "NONQUALIFIED DEFERRED
COMPENSATION PLAN" (AS DEFINED IN SECTION 409A OF THE CODE FOLLOWING A
TERMINATION OF EMPLOYMENT OR ANY "SEPARATION FROM SERVICE" AS DEFINED IN SECTION
409A(A)(2)(A)(I) OF THE CODE), THEN, NOTWITHSTANDING ANY
4
OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, SUCH PAYMENT SHALL BE DELAYED
AND MADE ON THE FIRST DAY OF THE SEVENTH (7TH) MONTH FOLLOWING EXECUTIVE'S
"SEPARATION FROM SERVICE," BUT ONLY IF THE EXECUTIVE IS DEEMED TO BE A
"SPECIFIED EMPLOYEE" WITHIN THE MEANING OF SECTION 409A(A)(2)(B)(I) OF THE CODE.
9.2.
GOOD FAITH INTENTION.
THE COMPANY AND EXECUTIVE INTEND IN GOOD
FAITH THAT THIS AGREEMENT COMPLY WITH THE APPLICABLE REQUIREMENTS OF SECTION
409A OF THE CODE AND THAT THIS AGREEMENT BE CONSTRUED, INTERPRETED AND
ADMINISTERED IN ACCORDANCE WITH SUCH INTENT.
IF THE COMPANY OR EXECUTIVE
BELIEVES, AT ANY TIME, THAT THIS AGREEMENT DOES NOT COMPLY WITH SECTION 409A OF
THE CODE, IT WILL PROMPTLY ADVISE THE OTHER PARTY AND WILL NEGOTIATE REASONABLY
AND IN GOOD FAITH TO AMEND THE TERMS OF THIS AGREEMENT, WITH THE MOST LIMITED
POSSIBLE ECONOMIC EFFECT ON COMPANY AND EXECUTIVE, SUCH THAT IT COMPLIES WITH
SECTION 409A