2009, IT SHALL BE BASE
SALARY TIMES 3.
8
(C)
TERMINATION UPON NON-RENEWAL OF THE EMPLOYMENT TERM.
UNLESS THE
PARTIES HERETO AGREE OTHERWISE, THE EMPLOYMENT TERM AND THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY SHALL END ON DECEMBER 31, 2009.
IN CONNECTION WITH
SUCH TERMINATION OF EMPLOYMENT, THE COMPANY SHALL, AS SOON AS PRACTICABLE
FOLLOWING THE EXECUTIVE'S EXECUTION AND DELIVERY TO THE COMPANY OF THE GENERAL
RELEASE SET FORTH IN SECTION 7(G) AND FOLLOWING THE EXPIRATION OF ANY APPLICABLE
REVOCATION PERIOD, CAUSE THE EXECUTIVE TO BE PAID A LUMP-SUM SEVERANCE PAYMENT
OF CASH EQUAL TO THE BASE SALARY THEN IN EFFECT.
IN ADDITION, IN CONNECTION
WITH A TERMINATION OF EMPLOYMENT PURSUANT TO THIS SECTION 7(C), THE COMPANY
SHALL CAUSE THE EXECUTIVE TO BE PAID THE ANNUAL CASH BONUS FOR THE COMPANY'S
2009 FISCAL YEAR, THE 2007-2009 LTIP AND THE 2008-2010 LTIP (PRO-RATED),
DETERMINED BASED ON ACTUAL SATISFACTION OF ANY APPLICABLE PERFORMANCE GOALS
DURING SUCH FISCAL YEAR, WITH SUCH BONUS TO BE PAID WHEN PAID TO THE OTHER
PARTICIPANTS IN THE SCHEME AND WITHOUT APPLICATION OF ANY MANDATORY DEFERRAL
PROVISIONS OR CONTINUED EMPLOYMENT REQUIREMENTS.
(D)
UPON A TERMINATION OF THE EXECUTIVE'S EMPLOYMENT DURING THE
EMPLOYMENT TERM BY THE COMPANY FOR CAUSE, OR UPON TERMINATION BY THE EXECUTIVE
WITH 30 DAYS' WRITTEN NOTICE GIVEN TO THE COMPANY (OTHER THAN A CONSTRUCTIVE
TERMINATION WITHOUT CAUSE), THE EXECUTIVE SHALL BE ENTITLED TO EARNED BUT UNPAID
BASE SALARY AND BENEFITS THROUGH THE DATE OF TERMINATION, AND THE EXECUTIVE
SHALL NOT BE ENTITLED TO ANY OTHER PAYMENTS OR BENEFITS.
(E)
UPON ANY TERMINATION OF THE EXECUTIVE'S EMPLOYMENT DURING THE
EMPLOYMENT TERM OTHER THAN BY THE COMPANY FOR CAUSE, THE COMPANY SHALL PAY FOR
THE CONTINUED MEDICAL BENEFITS FOR THE EXECUTIVE AND HIS FAMILY UNDER (AND IN
ACCORDANCE WITH THE TERMS OF) COBRA FOR A PERIOD OF TWELVE (12) MONTHS FOLLOWING
SUCH TERMINATION; FOR THE
9
AVOIDANCE OF DOUBT THIS PROVISION APPLIES UPON A TERMINATION PURSUANT TO
SECTION 7(C) HEREOF.
THE EXECUTIVE SHALL PAY FOR THE REMAINING COBRA
ENTITLEMENT PERIOD.
For purposes of this Agreement:
(I)
A "CONSTRUCTIVE TERMINATION WITHOUT CAUSE" MEANS A TERMINATION OF
THE EXECUTIVE'S EMPLOYMENT DURING THE EMPLOYMENT TERM BY THE EXECUTIVE FOLLOWING
THE OCCURRENCE OF ANY OF THE FOLLOWING EVENTS WITHOUT THE EXECUTIVE'S PRIOR
CONSENT: (A) FAILURE BY THE COMPANY TO CONTINUE THE EXECUTIVE AS THE GENERAL
COUNSEL (EXCLUDING A PROMOTION); (B) ANY MATERIAL DIMINUTION IN THE EXECUTIVE'S
WORKING CONDITIONS OR AUTHORITY, RESPONSIBILITIES OR AUTHORITIES; (C) ASSIGNMENT
TO THE EXECUTIVE OF DUTIES THAT ARE INCONSISTENT, IN A MATERIAL RESPECT, WITH
THE SCOPE OF DUTIES AND RESPONSIBILITIES ASSOCIATED WITH HIS POSITION AS SET
FORTH HEREIN; (D) ANY MATERIALLY ADVERSE CHANGE IN THE REPORTING STRUCTURE
APPLICABLE TO THE EXECUTIVE (BUT NOT INCLUDING A CHANGE IN THE PERSON FILLING
THE POSITION TO WHICH THE EXECUTIVE REPORTS); (E) THE FAILURE OF THE COMPANY TO
MAINTAIN COMMERCIALLY REASONABLE DIRECTORS' AND OFFICERS' LIABILITY INSURANCE;
OR (F) A CHANGE IN CONTROL OCCURS AND THE EXECUTIVE IS TERMINATED IN A
TERMINATION WITHOUT CAUSE DURING THE PERIOD COMMENCING ON THE DATE