**1.3 Authority, Duties and Responsibilities**     During the Employment Period, the Employee’s authority, duties and responsibilities shall beat least reasonably commensurate in all material respects with the most significant of those held,exercised and assigned at any time during the 90-day period immediately preceding the EffectiveDate.     **1.4 Employment Status**     If prior to the Effective Date the Employee’s employment with the Employer or itsaffiliated companies terminates, then the Employee shall have no further rights under thisAgreement.**2. ATTENTION AND EFFORT**     During the Employment Period, and excluding any periods of vacation and sick leave to whichthe Employee is entitled, the Employee will devote all of his professional productive time,ability, attention and effort to the business and affairs of the Employer and the discharge of theresponsibilities assigned to him hereunder, and will use his best efforts to perform faithfully andefficiently such responsibilities.**3.****COMPENSATION**     During the Employment Period, the Employer agrees to pay or cause to be paid to the Employee,and the Employee agrees to accept in exchange for the services rendered hereunder by him, thefollowing compensation:     **3.1 Salary**     The Employee shall receive an annual base salary (the “Annual Base Salary”), at least equal tothe annual salary established by the Board prior to the Effective Date for the fiscal year in whichthe Effective Date occurs. The Annual Base Salary shall be paid in substantially equal installmentsand at the same intervals as the salaries of other officers of the Employer are paid.     **3.2 Bonus**     Employee may be entitled to receive, in addition to the Annual Base Salary, an annual bonus inan amount to be determined by the Board of Directors of the Employer in its sole discretion.     **3.3 Benefits**     During the Employment Period, the Employee shall be entitled to participate, subject to and inaccordance with applicable eligibility requirements, in such fringe benefit programs as shall beprovided to other executive employees of the Employer and its affiliated companies from time totime during the Employment Period by action of the Board (or any   JOHN HARVEY CHANGE OF CONTROL AGREEMENT 6-1-09 -2-
 

 
person or committee appointed by the Board to determine fringe benefit programs and otheremoluments).     **3.4 Expenses**     During the Employment Period, the Employee shall be entitled to receive prompt reimbursementfor all reasonable employment expenses incurred by him in accordance with the policies, practicesand procedures of the Employer and its affiliated companies in effect for the employees of theEmployer and its affiliated companies during the Employment Period or pursuant to an applicabletravel policy.**4. TERMINATION**     Employment of the Employee during the Employment Period may be terminated as follows but, inany case, the nondisclosure and noncompetition provisions set forth in Section 4 of the EmploymentAgreement shall survive the termination of this Agreement and the termination of the Employee’semployment with the Employer:     **4.1 By the Employer or the Employee**     Upon giving Notice of Termination (as defined below), the Employer may terminate theemployment of the Employee with or without Cause (as defined in the Employment Agreement), and theEmployee may terminate his employment for Good Reason (as defined below) or for any reason, at anytime during the Employment Period.     **4.2 Automatic Termination**     This Agreement and the Employee’s employment during the Employment Period shall terminateautomatically pursuant to Section 2.3 of the Employment Agreement upon the death or totaldisability of the Employee. The Employee and the Employer hereby acknowledge that the Employee’spresence and ability to perform the duties specified in Section 1.3 hereof is of the essence ofthis Agreement.     **4.3 Notice of Termination**     Any termination by the Employer or by the Employee during the Employment Period shall becommunicated by Notice of Termination to the other party given within 30 days in accordance withSection 2.5 of the Employment Agreement. The term “Notice of Termination” shall mean a writtennotice which (a) indicates the specific termination provision in this Agreement relied upon and (b)to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of the Employee’s employment under the provision so indicated. Thefailure by the Employer to set forth in the Notice of Termination any fact or circumstance whichcontributes to a showing of Cause shall not waive any right of the Employer hereunder or precludethe Employer from asserting such fact or circumstance in enforcing the Employer’s rights hereunder.   JOHN HARVEY CHANGE OF CONTROL AGREEMENT 6-1-09 -3-
 

 
     **4.4 Date of Termination**     During the Employment Period, “Date of Termination” means (a) if the Employee’s employment isterminated by reason of death, at the end of the calendar month in which the Employee’s deathoccurs, and (b) in all other cases, the later of (i) five days after the date of personal deliveryof or mailing of, as applicable, the Notice of Termination, and (ii) the date on which the Employeeseparates from service, within the meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Codeof 1986, as amended (the “Code”). The Employee’s employment and performance of services willcontinue during such five-day period; provided, however, that the Employer may, upon noticeto the Employee and without reducing the Employee’s compensation during such period, excuse theEmployee from any or all of his duties during such period.**5. TERMINATION PAYMENTS**     In the event of termination of the Employee’s employment during the Employment Period, allcompensation and benefits set forth in this Agreement shall terminate except as specificallyprovided in this Section 5. **5.1** **Termination by the Employer for Other Than Cause or by theEmployee for Good Reason**     If the Employer terminates the Employee’s employment other than for Cause or the Employeeterminates his employment for Good Reason prior to the end of the Employment Period, the Employeeshall be entitled to:          (a) Receive payment of the following accrued obligations (the “Accrued