THE TIME OF THE TERMINATION EVENT SHALL BE GOVERNED BY THE RESPECTIVE
AWARD AGREEMENT.
THIS INCLUDES BUT IS NOT LIMITED TO RESTRICTED STOCK UNITS,
AWARDS UNDER THE LONG-TERM PERFORMANCE PROGRAM, AND INCLUDES AWARDS MADE
PURSUANT TO THE STOCK PLAN WHICH MAY BE SETTLED IN CASH.
4
3.5
BONUS.
IF A TERMINATION EVENT OCCURS,
EXECUTIVE SHALL RECEIVE A PRO-RATED BONUS UNDER ANY BONUS PLAN APPLICABLE TO
EXECUTIVE, WHICH IS IN PLACE AT THE TIME OF THE TERMINATION EVENT FOR THE
PERFORMANCE PERIOD IN WHICH THE TERMINATION EVENT OCCURS.
THE AMOUNT OF THE
BONUS SHALL BE CALCULATED UNDER THE TERMS OF SUCH BONUS PROGRAM AS ESTABLISHED
BY THE COMPANY, INCLUDING WHETHER OR NOT, OR TO WHAT DEGREE, ANY
PERFORMANCE-BASED CONDITIONS HAVE BEEN MET, AND SHALL BE EQUAL TO THE AMOUNT OF
THE BONUS THE EXECUTIVE WOULD HAVE BEEN PAID UNDER THE TERMS OF SUCH BONUS
PROGRAM HAD THE EXECUTIVE CONTINUED HIS EMPLOYMENT WITH THE COMPANY UNTIL THE
END OF SUCH PERFORMANCE PERIOD MULTIPLIED BY A FRACTION IN WHICH (I) THE
NUMERATOR IS THE NUMBER OF DAYS FROM AND INCLUDING THE FIRST DAY OF THE
PERFORMANCE PERIOD UNTIL AND INCLUDING THE DATE OF THE TERMINATION EVENT, AND
(II) THE DENOMINATOR IS THE NUMBER OF DAYS IN THE PERFORMANCE PERIOD.
SUCH
BONUS SHALL BE PAID ON THE DATE EXECUTIVE WOULD HAVE RECEIVED THE BONUS IF THE
TERMINATION EVENT HAD NOT OCCURRED DURING SUCH PERFORMANCE PERIOD; PROVIDED,
HOWEVER, THAT IN ANY EVENT SUCH BONUS WILL BE PAID NO LATER THAN TWO AND
ONE-HALF (2 1⁄2) MONTHS AFTER THE END OF THE CALENDAR YEAR IN WHICH THE
TERMINATION EVENT OCCURS.
EXECUTIVE'S RIGHTS TO THE PAYMENT PROVIDED IN THIS
SECTION 3.5 SHALL NOT BE TERMINATED BY THE APPLICATION OF SECTION 4.2 OF THIS
AGREEMENT.
THIS SECTION 3.5 SHALL NOT APPLY TO AWARDS PURSUANT TO THE STOCK
PLAN.
3.6
MITIGATION.
EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED HEREIN, EXECUTIVE SHALL NOT BE REQUIRED TO MITIGATE DAMAGES OR THE
AMOUNT OF ANY PAYMENT PROVIDED UNDER THIS AGREEMENT BY SEEKING OTHER EMPLOYMENT
OR OTHERWISE, NOR SHALL THE AMOUNT OF ANY PAYMENT PROVIDED FOR UNDER THIS
AGREEMENT BE REDUCED BY ANY COMPENSATION EARNED BY EXECUTIVE AS A RESULT OF
EMPLOYMENT BY ANOTHER EMPLOYER OR BY RETIREMENT BENEFITS AFTER THE DATE OF THE
TERMINATION EVENT, OR OTHERWISE.
3.7
Compliance with Section 409A.
In the event
that (i) one or more payments of compensation or benefits received or to be
received by Executive pursuant to this Agreement ("Agreement Payment") would
constitute deferred compensation subject to Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code") and (ii)
Executive is deemed at the time
of such termination of employment to be a "specified employee" under
Section 409A(a)(2)(B)(i) of the Code, then such Payment shall not be made or
commence until the earlier of (i) the expiration of the six (6)-month period
measured from the date of Executive's "separation from service" (as such term is
at the time defined in Treasury Regulations under Section 409A of the Code) with
the Company or (ii)