will begin to be paid or provided as soon
as the Release becomes irrevocable.
5.2.
TERMINATION FOLLOWING A CHANGE IN CONTROL.
IF, WITHIN ONE YEAR
FOLLOWING A CHANGE IN CONTROL (AS DEFINED BELOW), EXECUTIVE'S EMPLOYMENT BY THE
COMPANY CEASES DUE TO A TERMINATION BY THE COMPANY WITHOUT CAUSE OR A
RESIGNATION BY EXECUTIVE FOR GOOD REASON, THEN:
5.2.1.
SUBJECT TO THE RELEASE BECOMING IRREVOCABLE, THE DURATION OF THE
SEVERANCE BENEFITS DESCRIBED IN SECTIONS 5.1.3 AND 5.1.4 WILL BE EXTENDED FROM 6
MONTHS TO 12 MONTHS;
5.2.2.
SUBJECT TO THE RELEASE BECOMING IRREVOCABLE, EXECUTIVE WILL BE
CREDITED WITH AN ADDITIONAL 12 MONTHS OF SERVICE FOR PURPOSES OF DETERMINING THE
VESTED STATUS OF ANY STOCK OPTIONS OR OTHER EQUITY-BASED INCENTIVES HELD BY HIM
IMMEDIATELY PRIOR TO SUCH CESSATION; AND
5.2.3.
THE POST-CESSATION DURATION OF THE RESTRICTIONS CONTAINED IN
SECTIONS 8.1.1 AND 8.1.2 WILL BE EXTENDED FROM ONE YEAR TO TWO YEARS.
5.3.
OTHER TERMINATIONS.
IF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY
CEASES FOR ANY REASON OTHER THAN AS DESCRIBED IN SECTION 5.1, ABOVE (INCLUDING
BUT NOT LIMITED TO TERMINATION (A) BY THE COMPANY FOR CAUSE, (B) AS A RESULT OF
EXECUTIVE'S DEATH, (C) AS A RESULT OF EXECUTIVE'S DISABILITY (AS DEFINED BELOW),
OR (D) BY EXECUTIVE WITHOUT GOOD REASON), THEN THE COMPANY'S OBLIGATION TO
EXECUTIVE WILL BE LIMITED SOLELY TO THE PAYMENT OF ACCRUED AND UNPAID BASE
SALARY THROUGH THE DATE OF SUCH CESSATION.
ALL COMPENSATION AND BENEFITS WILL
CEASE AT THE TIME OF SUCH CESSATION AND, EXCEPT AS OTHERWISE PROVIDED BY COBRA,
THE COMPANY WILL HAVE NO FURTHER LIABILITY OR OBLIGATION BY REASON OF SUCH
TERMINATION.
THE FOREGOING WILL NOT BE CONSTRUED TO LIMIT EXECUTIVE'S RIGHT TO
PAYMENT OR REIMBURSEMENT FOR CLAIMS INCURRED PRIOR TO THE DATE OF SUCH
TERMINATION UNDER ANY INSURANCE CONTRACT FUNDING AN EMPLOYEE BENEFIT PLAN,
POLICY OR ARRANGEMENT OF THE COMPANY IN ACCORDANCE WITH THE TERMS OF SUCH
INSURANCE CONTRACT.
5
5.4.
COMPLIANCE WITH SECTION 409A.
NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT, IF THE TERMINATION GIVING RISE TO ANY PAYMENT OR BENEFIT
DESCRIBED IN SECTION 5 IS NOT A "SEPARATION FROM SERVICE" WITHIN THE MEANING OF
TREAS. REG. § 1.409A-1(H)(1) (OR ANY SUCCESSOR PROVISION), THEN THE PAYMENT OF
THOSE AMOUNTS (TO THE EXTENT THEY CONSTITUTE A "DEFERRAL OF COMPENSATION,"
WITHIN THE MEANING OF SECTION 409 A OF THE INTERNAL REVENUE CODE) WILL BE
DEFERRED (WITHOUT INTEREST) UNTIL SUCH TIME AS EXECUTIVE EXPERIENCES A
SEPARATION FROM SERVICE.
IN ADDITION, TO THE EXTENT COMPLIANCE WITH THE
REQUIREMENTS OF TREAS.
REG. § 1.409A-3(I)(2) (OR ANY SUCCESSOR PROVISION) IS
NECESSARY TO AVOID THE APPLICATION OF AN ADDITIONAL TAX UNDER SECTION 409A OF
THE INTERNAL REVENUE CODE, THOSE AMOUNTS THAT WOULD OTHERWISE BE PAID WITHIN SIX
MONTHS FOLLOWING EXECUTIVE'S SEPARATION FROM SERVICE (TAKING INTO ACCOUNT THE
PRECEDING SENTENCE) WILL INSTEAD BE DEFERRED (WITHOUT INTEREST) AND PAID TO
EXECUTIVE IN A LUMP SUM IMMEDIATELY FOLLOWING THAT SIX-MONTH PERIOD.
THIS
PROVISION SHALL NOT BE CONSTRUED AS PREVENTING THE APPLICATION OF TREAS.
REG.
§§ 1.409A-L(B)(4) OR 1.409A-L(B)(9) (OR ANY SUCCESSOR PROVISIONS) TO AMOUNTS
PAYABLE