EXECUTIVE TERMINATES HIS
3
EMPLOYMENT BECAUSE (I) THE COMPANY HAS MATERIALLY BREACHED THIS AGREEMENT, AND
SUCH BREACH HAS NOT BEEN CURED WITHIN THIRTY (30) DAYS AFTER WRITTEN NOTICE OF
SUCH BREACH IS GIVEN BY EXECUTIVE TO THE COMPANY; OR (II) EXECUTIVE HAS
DETERMINED THAT HIS TERMINATION IS FOR GOOD REASON (AS DEFINED IN SECTION 5.7),
EXECUTIVE SHALL BE ENTITLED TO RECEIVE THE COMPENSATION AND BENEFITS SET FORTH
IN SUBSECTIONS (A) THROUGH (G) BELOW.
IF EXECUTIVE TERMINATES HIS EMPLOYMENT
OTHER THAN PURSUANT TO CLAUSES (I) OR (II) ABOVE OF THIS SECTION 4.1, THE
COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT SHALL CEASE AS OF THE DATE OF SUCH
TERMINATION.
UNLESS SPECIFIED OTHERWISE, IF EXECUTIVE IS ENTITLED TO
COMPENSATION AND BENEFITS UNDER THIS SECTION 4.1, THE TIME PERIOD (SUCH TIME
PERIOD DESCRIBED HEREINAFTER IS REFERRED TO AS THE "SEVERANCE PERIOD") IN
(A) THROUGH (G) BELOW SHALL BE THE LESSER OF (A) THE 24-MONTH PERIOD COMMENCING
ON EXECUTIVE'S DATE OF TERMINATION, OR (B) THE TIME PERIOD REMAINING FROM
EXECUTIVE'S DATE OF TERMINATION UNTIL THE DATE HE ATTAINS AGE 65.
THE COMPANY
AGREES THAT IF EXECUTIVE TERMINATES EMPLOYMENT AND IS ENTITLED TO COMPENSATION
AND BENEFITS UNDER THIS SECTION 4.1, HE SHALL NOT BE REQUIRED TO MITIGATE
DAMAGES BY SEEKING OTHER EMPLOYMENT, NOR SHALL ANY AMOUNT HE EARNS REDUCE THE
AMOUNT PAYABLE BY THE COMPANY HEREUNDER.
(A)
BASE SALARY - EXECUTIVE WILL CONTINUE TO
RECEIVE HIS BASE SALARY AS THEN IN EFFECT (SUBJECT TO WITHHOLDING OF ALL
APPLICABLE TAXES) FOR THE SEVERANCE PERIOD IN THE SAME MANNER AS IT WAS BEING
PAID AS OF THE DATE OF TERMINATION; PROVIDED, HOWEVER, THAT THE SALARY PAYMENTS
PROVIDED FOR HEREUNDER SHALL BE PAID IN A SINGLE LUMP SUM PAYMENT, TO BE PAID
NOT LATER THAN 30 DAYS AFTER HIS TERMINATION OF EMPLOYMENT; PROVIDED, FURTHER,
THAT THE AMOUNT OF SUCH LUMP SUM PAYMENT SHALL BE DETERMINED BY TAKING THE
SALARY PAYMENTS TO BE MADE AND DISCOUNTING THEM TO THEIR PRESENT VALUE (AS
DEFINED IN SECTION 5.9) ON THE DATE EXECUTIVE'S EMPLOYMENT UNDER THIS AGREEMENT
IS TERMINATED.
(B)
BONUSES AND INCENTIVES - EXECUTIVE SHALL
RECEIVE BONUS PAYMENTS FROM THE COMPANY FOR EACH MONTH OF THE SEVERANCE PERIOD
IN AN AMOUNT FOR EACH SUCH MONTH EQUAL TO ONE-TWELFTH OF THE AVERAGE OF THE
BONUSES ("AVERAGE BONUS") EARNED BY HIM FOR THE TWO FISCAL YEARS IN WHICH
BONUSES WERE PAID TO HIM (INCLUDING, IF APPLICABLE, ANY COMPLETED FISCAL YEAR
FOR WHICH THE BONUS HAS BEEN EARNED BUT HAS NOT YET BEEN PAID) IMMEDIATELY
PRECEDING THE YEAR IN WHICH SUCH TERMINATION OCCURS.
ANY BONUS AMOUNTS THAT
EXECUTIVE HAD PREVIOUSLY EARNED FROM THE COMPANY BUT WHICH MAY NOT YET HAVE BEEN
PAID AS OF THE DATE OF TERMINATION SHALL BE PAYABLE ON THE DATE SUCH AMOUNTS ARE
PAYABLE TO OTHER EXECUTIVES AND EXECUTIVE'S TERMINATION SHALL NOT AFFECT THE
PAYMENT OF SUCH BONUS.
EXECUTIVE SHALL ALSO RECEIVE A PRO RATED BONUS FOR ANY
UNCOMPLETED FISCAL YEAR AT THE DATE OF TERMINATION, CALCULATED BASED UPON THE
AVERAGE BONUS AND THE NUMBER OF DAYS COMPARED TO 365 THAT