THAT HE HAS A DISABILITY, THE EXECUTIVE SHALL PROVIDED THIRTY (30)
DAYS PRIOR WRITTEN NOTICE (EXCEPT THAT SUCH DETERMINATION SHALL NOT BE
CONCLUSIVE AS TO WHETHER THE EXECUTIVE ACTUALLY HAS A DISABILITY AND, IF IT IS
DETERMINED THAT THE EXECUTIVE DOES NOT ACTUALLY HAVE A DISABILITY, HE SHALL BE
DEEMED TO HAVE TERMINATED EMPLOYMENT WITHOUT A DISABILITY AND WITHOUT GOOD
REASON); PROVIDED, FURTHER, THAT IF THE REQUIRED NOTICE PERIOD IN THIS
SECTION 5.2 WOULD RESULT IN THE TERMINATION OCCURRING ON THE LAST DAY OR
FOLLOWING THE PERIOD OF EMPLOYMENT, FOR PURPOSES OF DETERMINING THE EXECUTIVE'S
ENTITLEMENT TO A SEVERANCE BENEFIT UNDER SECTION 5.3 (AND ANY ACCELERATION OF
VESTING OF ANY EQUITY-BASED AWARD), SUCH TERMINATION SHALL BE DEEMED TO OCCUR ON
THE EARLIER OF (I) IMMEDIATELY PRIOR TO THE LAST DAY OF THE PERIOD OF EMPLOYMENT
OR (II) THE DAY ON WHICH THE EXECUTIVE CEASES TO BE EMPLOYED BY THE
CORPORATION.
NOTWITHSTANDING THE PRECEDING SENTENCE, IN NO EVENT SHALL
6
THE EXECUTIVE BE ENTITLED TO THE SEVERANCE BENEFIT UNDER SECTION 5.3 IF HE IS
ACTUALLY EMPLOYED BY THE CORPORATION ON THE LAST DAY OF THE PERIOD OF
EMPLOYMENT.
5.3
BENEFITS UPON TERMINATION.
IF THE EXECUTIVE'S
EMPLOYMENT BY THE CORPORATION IS TERMINATED DURING THE PERIOD OF EMPLOYMENT FOR
ANY REASON BY THE CORPORATION OR BY THE EXECUTIVE, OR UPON OR FOLLOWING THE
EXPIRATION OF THE PERIOD OF EMPLOYMENT (IN ANY CASE, THE DATE THAT THE
EXECUTIVE'S EMPLOYMENT BY THE CORPORATION TERMINATES IS REFERRED TO AS THE
"SEVERANCE DATE"), THE CORPORATION SHALL HAVE NO FURTHER OBLIGATION TO MAKE OR
PROVIDE TO THE EXECUTIVE, AND THE EXECUTIVE SHALL HAVE NO FURTHER RIGHT TO
RECEIVE OR OBTAIN FROM THE CORPORATION, ANY PAYMENTS OR BENEFITS EXCEPT:
(a)
the Corporation shall pay the Executive
(or, in the event of his death, the Executive's estate) any Accrued Obligations
(as defined in Section 5.5);
(b)
if, during the Period of Employment (but not
following the expiration of the Period of Employment), the Executive's
employment is terminated by the Corporation without Cause or by the Executive
for Good Reason (as defined in Section 5.5) (and, in each case, other than due
to either (i) the Executive's death, or (ii) his Disability), the Corporation
shall, subject to the following provisions of this Section 5.3, pay the
Executive an aggregate severance benefit ("Aggregate Severance Benefit") (in
addition to the Accrued Obligations) equal to the sum of the following, subject
to tax withholding and other authorized deductions:
(i)
the Base Salary that would have been paid to the Executive by
the Corporation (at the rate in effect immediately prior to the termination of
the Executive's employment) for the period commencing on the day after the
Severance Date and continuing through and including the Termination Date had the
Executive's employment not terminated, plus
(ii)
either (x) if the Severance Date occurs before December 31, 2005,
an amount equal to one hundred and seventy five percent (175%) of the
Executive's annualized Base Salary rate in effect immediately prior to the
termination of the Executive's