accordance with Section 2 hereof after thirty (30) days'
notice during which the Company does not cure such failure; or (iv) relocation
of the Executive's office more than thirty-five (35) miles from the location of
the Company's principal offices as of January 1, 2008.
(D)
THE EXECUTIVE MAY TERMINATE HIS EMPLOYMENT WITH THE COMPANY OTHER
THAN FOR GOOD REASON AT ANY TIME UPON ONE MONTH'S NOTICE TO THE COMPANY, UNLESS
SUCH TERMINATION WOULD VIOLATE ANY OBLIGATION OF THE EXECUTIVE TO THE COMPANY
UNDER A SEPARATE SEVERANCE AGREEMENT.
(e)
This Agreement shall automatically terminate in the event of the
Executive's death during employment.
The Company may terminate the Executive's
employment, upon notice to the Executive, in the event the Executive becomes
disabled during employment and, as a result, is unable to continue to perform
substantially all of his material duties and responsibilities under this
Agreement for one-hundred and twenty (120) days during any period of three
hundred and sixty-five (365) consecutive calendar days.
If any question shall
arise as to whether the Executive is disabled to the extent that the Executive
is unable to perform
4
SUBSTANTIALLY ALL OF HIS MATERIAL DUTIES AND RESPONSIBILITIES FOR THE COMPANY
AND ITS AFFILIATES, THE EXECUTIVE SHALL, AT THE COMPANY'S REQUEST AND EXPENSE,
SUBMIT TO A MEDICAL EXAMINATION BY A PHYSICIAN SELECTED BY THE COMPANY TO WHOM
THE EXECUTIVE OR THE EXECUTIVE'S GUARDIAN, IF ANY, HAS NO REASONABLE OBJECTION
TO DETERMINE WHETHER THE EXECUTIVE IS SO DISABLED AND SUCH DETERMINATION SHALL
FOR THE PURPOSES OF THIS AGREEMENT BE CONCLUSIVE OF THE ISSUE.
IF SUCH A
QUESTION ARISES AND THE EXECUTIVE FAILS TO SUBMIT TO THE REQUESTED MEDICAL
EXAMINATION, THE COMPANY'S DETERMINATION OF THE ISSUE SHALL BE BINDING ON THE
EXECUTIVE.
5.
SEVERANCE PAYMENTS AND OTHER MATTERS RELATED TO TERMINATION.
(a)
Termination pursuant to Section 4(b), 4(c) or 4(e).
Except as
provided in Section 5(c) below,
(I) IN THE EVENT OF TERMINATION OF THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY
OTHER THAN FOR CAUSE PURSUANT TO SECTION 4(A) OF THIS AGREEMENT, OR IN THE EVENT
OF TERMINATION OF THE EXECUTIVE'S EMPLOYMENT BY THE EXECUTIVE FOR GOOD REASON
PURSUANT TO SECTION 4(C) OF THIS AGREEMENT, (A) ALL UNVESTED OPTIONS AND
RESTRICTED STOCK WHICH, BY THEIR TERMS, VEST ONLY BASED ON THE PASSAGE OF
TIME(DISREGARDING ANY ACCELERATION OF THE VESTING OF SUCH OPTIONS BASED ON
INDIVIDUAL OR COMPANY PERFORMANCE) SHALL VEST AS OF THE DATE OF TERMINATION
(NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 2(C) OF THIS AGREEMENT)
WITH RESPECT TO AN ADDITIONAL ONE YEAR OF VESTING (EXCEPT THAT WITH RESPECT TO
RESTRICTED STOCK, A MINIMUM OF 25% OF SUCH UNVESTED SHARES SHALL VEST); AND
(B) THE COMPANY WILL CONTINUE TO PAY THE EXECUTIVE'S BASE SALARY, AT THE RATE IN
EFFECT ON THE DATE OF TERMINATION, FOR A PERIOD OF TWELVE (12) MONTHS FROM THE
DATE OF TERMINATION AND PAY A PRO-RATA PORTION (FOR THE PERIOD FROM JANUARY 1 OF
THE YEAR OF TERMINATION THROUGH THE DATE OF TERMINATION) OF THE TARGET CASH
BONUS FOR THE YEAR IN