NOTICE OF NON-EXTENSION OF THE TERM (WHICH THE PARTIES
AGREE CONSTITUTES A MATERIAL BREACH OF THE AGREEMENT). RESIGNATION FOR GOOD
REASON SHALL NOT OCCUR UNLESS THE EXECUTIVE PROVIDES THE COMPANY WITH WRITTEN
NOTICE OF THE EXISTENCE OF THE CONDITIONS SUPPORTING ANY OF THE FOREGOING EVENTS
DESCRIBED IN THIS DEFINITION WITHIN THE PERIOD NOT TO EXCEED 90 DAYS OF THE
INITIAL EXISTENCE
2
OF THE CONDITIONS AND THE COMPANY FAILS TO REMEDY SUCH CONDITIONS WITHIN TEN
(10) DAYS OF RECEIVING SUCH WRITTEN NOTICE.
c.
"Pro-Rate Factor" shall mean a
fraction, (i) the numerator of which is equal to the number of days that the
Executive is employed by the Company during the fiscal year in which the
Executive's employment terminates, and (ii) the denominator of which is the
number of days in such fiscal year.
4.
NOTICE OF TERMINATION.
ANY PURPORTED
TERMINATION OF EMPLOYMENT BY THE COMPANY OR BY EXECUTIVE (OTHER THAN DUE TO
EXECUTIVE'S DEATH) SHALL BE COMMUNICATED BY WRITTEN NOTICE OF TERMINATION TO THE
OTHER PARTY HERETO IN ACCORDANCE WITH SECTION 6(E) HEREOF.
FOR PURPOSES OF THIS
AGREEMENT, A "NOTICE OF TERMINATION" SHALL MEAN A NOTICE WHICH SHALL INDICATE
THE SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON AND THE DATE OF
TERMINATION, AND SHALL SET FORTH IN REASONABLE DETAIL THE FACTS AND
CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR TERMINATION OF EMPLOYMENT UNDER THE
PROVISION SO INDICATED.
UNLESS TERMINATING FOR GOOD REASON, EXECUTIVE SHALL
PROVIDE A NOTICE OF TERMINATION TO THE COMPANY AT LEAST (30) DAYS OR PRIOR TO
THE EFFECTIVE DATE OF THE EXECUTIVE'S TERMINATION OF EMPLOYMENT OTHER THAN DUE
TO HIS DEATH; PROVIDED, HOWEVER, THAT THE COMPANY MAY WAIVE ALL OR ANY PORTION
OF SUCH REQUIRED 30-DAY NOTICE PERIOD.
5.
SECTION 409A.
NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, IF ANY PAYMENT OF MONEY OR OTHER BENEFITS DUE TO
EXECUTIVE HEREUNDER COULD CAUSE THE APPLICATION OF AN ACCELERATED OR ADDITIONAL
TAX UNDER SECTION 409A OF THE CODE, SUCH PAYMENT OR OTHER BENEFITS WILL BE
DEFERRED IF DEFERRAL WILL MAKE SUCH PAYMENT OR OTHER BENEFITS COMPLIANT UNDER
SECTION 409A OF THE CODE (FOR INSTANCE, IF EXECUTIVE IS A "SPECIFIED EMPLOYEE"
WITHIN THE MEANING OF SECTION 409A OF THE CODE AND EXECUTIVE RECEIVES A PAYMENT
OR BENEFIT CONSTITUTING DEFERRED COMPENSATION HEREUNDER UPON A SEPARATION FROM
SERVICE WITHIN THE MEANING OF SECTION 409A OF THE CODE, SUCH PAYMENT OR BENEFIT
SHALL NOT BE DELIVERED TO EXECUTIVE UNTIL SIX MONTHS AND ONE DAY FOLLOWING
EXECUTIVE'S SEPARATION FROM SERVICE), OR OTHERWISE SUCH PAYMENT OR OTHER
BENEFITS WILL BE RESTRUCTURED, TO THE EXTENT POSSIBLE, IN A MANNER, DETERMINED
BY THE BOARD, THAT DOES NOT CAUSE SUCH AN ACCELERATED OR ADDITIONAL TAX;
PROVIDED THAT THE COMPANY AGREES TO MAINTAIN, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE ORIGINAL INTENT AND ECONOMIC BENEFIT TO THE EXECUTIVE OF THE APPLICABLE
PROVISION WITHOUT VIOLATING THE PROVISIONS OF SECTION 409A OF THE CODE. THIS
AGREEMENT IS INTENDED TO COMPLY WITH SECTION 409A OF THE CODE AND WILL BE
INTERPRETED ACCORDINGLY.
REFERENCES UNDER THIS AGREEMENT TO EXECUTIVE'S
TERMINATION