accordance with the Severance Plan, you will receive the severance payments and benefits set forth in Sections 3.01 and 3.02(a) of the Severance Plan on the basis that your “Qualifying Termination Date” is the Retirement Date; provided, however, that the “Pro-Rated Annual Bonus” payable to you pursuant to Section 3.02(a)(ii) of the Severance Plan will be equal to an amount (without proration) calculated based on (x) with respect to Company-wide performance goals, actual performance achieved by the Company during the Performance Period and (y) with respect to your individual performance factor, target performance (for the avoidance of doubt, without regard to any negative discretion with respect to such individual performance factor), provided, that the Company may, in its sole discretion, increase the amount of such bonus based on your performance prior to the Retirement Date. Such bonus will be paid in a lump sum cash payment no later than 60 days following the Retirement Date. Your outstanding equity awards will be treated in accordance with your existing Award Agreements. In the event that your employment terminates for any reason prior to the Retirement Date, the Company’s obligations to you will be determined under the Severance Plan without regard to this Agreement. You acknowledge and agree that the Company, in its sole discretion, will have the right to withhold from any amounts payable to you under this Agreement or the Severance Plan, as applicable, and regardless of the form of payment, any required withholdings pursuant to any statute or governmental regulation or ruling.
(b) The Company agrees to instruct the members of the Board not to make any defamatory or disparaging public statements about you that could reasonably be expected to adversely affect your professional or personal reputation. The foregoing restriction will not prohibit or restrict the Company, the Board or the members thereof from (w) responding truthfully to any government or legal process, investigation or inquiry, (x) making any public disclosures required under applicable securities laws or similar legal obligations, (y) making truthful statements regarding the Company, the Company’s business and the performance thereof or (z) in the case of the Company’s officers and members of the Board, engaging in confidential internal discussions in the conduct of their duties.
5. Obligations of the Executive. In accordance with Section 3.02(a) of the Severance Plan, the obligation of the Company to make the payments set forth therein are subject to your execution of a release of claims in a form acceptable to the Company (the “Release”). If you fail to execute and deliver the Release within 60 days following the Retirement Date, or if you revoke the Release as provided therein, then you will not be eligible to receive any payments under the Severance Plan. You hereby reaffirm and acknowledge that you are bound by Article V of the Severance Plan, including, without limitation, all such obligations that survive the termination of your employment.
6. D&O Insurance Policy. The parties hereto agree that any rights you may have under any director and officer insurance policy and indemnification agreements maintained by the Company will continue in full force and effect until the termination of your employment (including at the conclusion of any Garden Leave).
7. Miscellaneous.
(a) Any claims or disputes arising out of or related to this Agreement or the Release, the interpretation, validity, enforceability or an alleged breach of this Agreement or the Release will be resolved in accordance with Article VI of the Severance Plan.
(b) This Agreement, taken together with the Release, the Severance Plan and the Award Agreements, constitute and contain the entire agreement and understanding concerning your employment, termination from employment and the other subject matters addressed herein between the parties and supersedes and replaces all prior negotiations and all agreements proposed or otherwise, whether written or oral, concerning the subject matters hereof. This is an integrated document.
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