ACT; PROVIDED HOWEVER, THAT THE TERM "PERSON" SHALL NOT INCLUDE
(A) EXECUTIVE OR (B) THE EMPLOYER, ANY OF ITS SUBSIDIARIES, OR ANY TRUSTEE,
FIDUCIARY OR OTHER PERSON OR ENTITY HOLDING SECURITIES UNDER ANY EMPLOYEE
BENEFIT PLAN OF THE EMPLOYER OR ANY OF ITS SUBSIDIARIES.
IN ADDITION, NO
CHANGE-IN-CONTROL SHALL BE DEEMED TO HAVE OCCURRED UNDER CLAUSE (I)(A) ABOVE BY
VIRTUE OF A "GROUP" (AS SUCH TERM IS USED IN SECTIONS 13(D) AND 14(D) OF THE
EXCHANGE ACT) BECOMING A BENEFICIAL OWNER AS DESCRIBED IN SUCH CLAUSE, IF ANY
INDIVIDUAL OR ENTITY DESCRIBED IN CLAUSE (A) OR (B) OF THE FOREGOING SENTENCE IS
A MEMBER OF SUCH GROUP.
(D)
NOTICE OF TERMINATION.
ANY TERMINATION OF EXECUTIVE'S EMPLOYMENT BY THE
EMPLOYER OR BY EXECUTIVE (OTHER THAN ON ACCOUNT OF DEATH) SHALL BE COMMUNICATED
BY WRITTEN NOTICE OF TERMINATION TO THE OTHER PARTY HERETO IN ACCORDANCE WITH
SECTION 12 OF THIS AGREEMENT.
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, AS APPLICABLE, SHALL SET FORTH IN
REASONABLE DETAIL THE FACT AND CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR
TERMINATION OF EXECUTIVE'S EMPLOYMENT UNDER THE PROVISION SO INDICATED.
EXECUTIVE'S EMPLOYMENT SHALL TERMINATE AS OF THE EFFECTIVE DATE SET FORTH IN THE
NOTICE OF TERMINATION (THE "TERMINATION DATE"), WHICH DATE SHALL NOT BE MORE
THAN THIRTY (30) DAYS AFTER THE DATE OF THE NOTICE OF TERMINATION.
FOR
7
AVOIDANCE OF DOUBT, A NOTICE OF NON-RENEWAL PURSUANT TO SECTION 1 SHALL NOT BE
CONSIDERED A NOTICE OF TERMINATION.
7.
COMPENSATION UPON TERMINATION; CHANGE-IN-CONTROL.
(A)
TERMINATION BY EMPLOYER WITHOUT CAUSE OR BY EXECUTIVE WITH GOOD REASON.
IF (I) EXECUTIVE IS TERMINATED BY THE EMPLOYER WITHOUT CAUSE PURSUANT TO SECTION
6(A)(IV) ABOVE, OR (II) EXECUTIVE SHALL TERMINATE HIS EMPLOYMENT HEREUNDER WITH
GOOD REASON PURSUANT TO SECTION (6)(B)(II) ABOVE, THEN THE EMPLOYMENT PERIOD
SHALL TERMINATE AS OF THE TERMINATION DATE AND EXECUTIVE SHALL BE ENTITLED TO
THE FOLLOWING PAYMENTS AND BENEFITS, SUBJECT TO EXECUTIVE'S EXECUTION OF A
MUTUAL RELEASE AGREEMENT WITH THE EMPLOYER IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO EXECUTIVE AND THE EMPLOYER, WHEREBY, IN GENERAL, EACH PARTY
RELEASES THE OTHER FROM ALL CLAIMS SUCH PARTY MAY HAVE AGAINST THE OTHER PARTY
(OTHER THAN (A) CLAIMS AGAINST THE EMPLOYER RELATING TO THE EMPLOYER'S
OBLIGATIONS UNDER THIS AGREEMENT AND CERTAIN OTHER SPECIFIED AGREEMENTS ARISING
IN CONNECTION WITH OR AFTER EXECUTIVE'S TERMINATION, INCLUDING, WITHOUT
LIMITATION, EMPLOYER'S OBLIGATIONS HEREUNDER TO PROVIDE SEVERANCE PAYMENTS AND
BENEFITS AND ACCELERATED VESTING OF EQUITY AWARDS AND (B) CLAIMS AGAINST
EXECUTIVE RELATING TO OR ARISING OUT OF ANY ACT OF FRAUD, INTENTIONAL
MISAPPROPRIATION OF FUNDS, EMBEZZLEMENT OR ANY OTHER ACTION WITH REGARD TO THE
EMPLOYER OR ANY OF ITS AFFILIATED COMPANIES THAT CONSTITUTES A FELONY UNDER ANY
FEDERAL OR STATE STATUTE COMMITTED OR PERPETRATED BY EXECUTIVE DURING THE COURSE
OF EXECUTIVE'S EMPLOYMENT WITH THE EMPLOYER OR ITS AFFILIATES, IN ANY EVENT,
THAT WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE EMPLOYER, OR ANY OTHER CLAIMS
THAT MAY