EXECUTIVE NOT BEEN TERMINATED; PROVIDED THAT NO PAYMENTS
OF CONTINUED BASE SALARY WILL BE MADE UNTIL THE FIRST REGULAR PAYROLL PAYMENT
DATE THAT COMMENCES 30 DAYS AFTER THE TERMINATION DATE, PROVIDED THAT THE
RELEASE EFFECTIVENESS DATE HAS OCCURRED (WITH THE FIRST SUCH PAYMENT TO INCLUDE
A CATCH UP PAYMENT COVERING AMOUNTS THAT WOULD OTHERWISE HAVE BEEN PAID PRIOR TO
SUCH DATE BUT FOR THE APPLICATION OF THIS PROVISION).
(II)
THE EMPLOYER SHALL PAY EXECUTIVE ANNUAL PERFORMANCE BONUSES AS
FOLLOWS: (A) A PRORATED ANNUAL PERFORMANCE BONUS (THE "PRORATED ANNUAL BONUS")
EQUAL TO (X) EXECUTIVE'S ANNUAL PERFORMANCE BONUS FOR THE MOST RECENT PRIOR
FISCAL YEAR FOR WHICH THE AMOUNT OF SUCH BONUS HAD BEEN DETERMINED OR, IF THE
TERMINATION DATE OCCURS PRIOR TO EXECUTIVE'S ANNUAL PERFORMANCE BONUS FOR 2009
HAVING BEEN DETERMINED, THE AMOUNT OF $200,000 (WITH THE APPLICABLE AMOUNT BEING
REFERRED TO HEREIN AS THE "PRIOR ANNUAL BONUS") MULTIPLIED BY (Y) A FRACTION,
THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS IN THE FISCAL YEAR IN WHICH
EXECUTIVE'S EMPLOYMENT TERMINATES THROUGH THE TERMINATION DATE AND THE
DENOMINATOR OF WHICH IS 365, AND (B) A FURTHER PERFORMANCE BONUS (THE
"ADDITIONAL 6-MONTH BONUS") FOR THE 6 MONTHS FOLLOWING THE TERMINATION DATE
EQUAL TO ONE-HALF OF THE PRIOR ANNUAL BONUS (OR, IF THE TERMINATION DATE OCCURS
PRIOR TO THE EXECUTIVE'S ANNUAL PERFORMANCE BONUS FOR 2009 HAVING BEEN
DETERMINED, THE AMOUNT OF $100,000); PROVIDED THAT THE AMOUNTS SET FORTH IN
(A) AND (B) ABOVE SHALL BE REDUCED BY THE AMOUNT OF ANY ANNUAL PERFORMANCE
BONUS, OR ADVANCE THEREOF, PREVIOUSLY PAID FOR THE PERIODS SET FORTH IN (A) AND
(B) ABOVE.
SUCH PAYMENTS SHALL BE MADE ON THE LATER OF (A) THE DATES THE
EMPLOYER WOULD HAVE OTHERWISE PAID SUCH ANNUAL PERFORMANCE BONUSES TO EXECUTIVE
UNDER THE TERMS OF THIS AGREEMENT IF EXECUTIVE HAD REMAINED EMPLOYED BY THE
EMPLOYER OR (B) THE 30TH DAY AFTER THE TERMINATION DATE.
(III)
EXECUTIVE SHALL CONTINUE TO RECEIVE FROM THE EMPLOYER ALL
BENEFITS DESCRIBED IN SECTION 3(D) EXISTING ON THE TERMINATION DATE FOR A PERIOD
OF SIX (6) MONTHS AFTER THE TERMINATION DATE, SUBJECT TO THE TERMS AND
CONDITIONS UPON WHICH SUCH BENEFITS MAY BE OFFERED TO CONTINUING SENIOR
EXECUTIVES FROM TIME TO TIME.
FOR PURPOSES OF THE APPLICATION OF SUCH BENEFITS,
EXECUTIVE SHALL BE TREATED AS IF HE HAD REMAINED IN THE EMPLOY OF THE EMPLOYER
WITH A BASE SALARY AT THE RATE IN EFFECT ON THE DATE OF TERMINATION.
NOTWITHSTANDING THE FOREGOING, (A) NOTHING IN THIS SECTION 7(A)(III) SHALL
RESTRICT THE ABILITY OF THE EMPLOYER TO AMEND OR TERMINATE THE PLANS AND
PROGRAMS GOVERNING THE BENEFITS DESCRIBED IN SECTION 3(D) FROM TIME TO TIME IN
ITS SOLE DISCRETION, AND (B) THE EMPLOYER SHALL IN NO EVENT BE REQUIRED TO
PROVIDE ANY BENEFITS OTHERWISE REQUIRED BY THIS SECTION 7(A)(III) AFTER SUCH
TIME AS EXECUTIVE BECOMES ENTITLED TO RECEIVE BENEFITS OF THE SAME TYPE FROM
ANOTHER EMPLOYER OR RECIPIENT OF EXECUTIVE'S SERVICES (SUCH ENTITLEMENT BEING
DETERMINED WITHOUT REGARD TO ANY INDIVIDUAL WAIVERS OR OTHER SIMILAR
ARRANGEMENTS).
7
(IV)