APPOINTED OFFICES AS IN EFFECT
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF SUCH CHANGE; (2) ANY MATERIAL
REDUCTION OR MATERIAL FAILURE TO PAY WHEN DUE THE EXECUTIVE'S BASE SALARY,
MINIMUM ANNUAL BONUS, OR SUCCESS FEE; (3) THE COMPANY'S BREACH OF ANY MATERIAL
TERM OF THIS AGREEMENT THAT IS NOT CORRECTED WITHIN 10 DAYS AFTER DELIVERY OF A
NOTICE TO THE COMPANY WITH RESPECT TO SUCH BREACH; OR (4) THE FAILURE OF THE
COMPANY TO OBTAIN THE ASSUMPTION IN WRITING OF THIS AGREEMENT BY ANY SUCCESSOR
TO, OR AN ACQUIRER OF, ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY ON
OR PRIOR TO A MERGER, CONSOLIDATION, SALE OR SIMILAR TRANSACTION; PROVIDED,
HOWEVER, THAT EXECUTIVE FIRST NOTIFIES THE COMPANY IN WRITING OF AN OCCURRENCE
CONSTITUTING GOOD REASON WITHIN 60 DAYS OF THE OCCURRENCE THEREOF AND THE
COMPANY FAILS TO CURE SUCH OCCURRENCE WITHIN 30 DAYS OF SUCH NOTICE.
FOR
PURPOSES OF THIS DEFINITION, NONE OF THE ACTIONS DESCRIBED IN CLAUSES
(1) THROUGH (4) OF THIS PARAGRAPH 4.A(V) SHALL CONSTITUTE "GOOD REASON" WITH
RESPECT TO EXECUTIVE IF IT WAS AN ISOLATED AND INADVERTENT ACTION NOT TAKEN IN
BAD FAITH BY THE COMPANY AND IF IT IS REMEDIED BY THE COMPANY WITHIN 10 DAYS
AFTER RECEIPT OF WRITTEN NOTICE THEREOF GIVEN BY EXECUTIVE.
(VI)
TERMINATION BY EXECUTIVE WITHOUT GOOD REASON.
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT UNDER THIS AGREEMENT WITHOUT GOOD REASON
UPON AT LEAST 30 DAYS' PRIOR WRITTEN NOTICE TO THE COMPANY.
5
B.
CONSEQUENCES OF TERMINATION OF
EMPLOYMENT.
(I)
TERMINATION BY THE COMPANY WITHOUT CAUSE
OR BY EXECUTIVE FOR GOOD REASON.
EXECUTIVE SHALL BE ENTITLED TO AND SHALL
RECEIVE THE SEVERANCE BENEFITS DESCRIBED IN THIS PARAGRAPH 4.B(I) IF EXECUTIVE'S
EMPLOYMENT IS TERMINATED WITHOUT CAUSE (UNDER PARAGRAPH 4.A(III) HEREOF) OR
EXECUTIVE TERMINATES HIS EMPLOYMENT FOR GOOD REASON (UNDER PARAGRAPH
4.A(V) HEREOF) IN THE AMOUNT OF $2,000,000, WHICH SHALL BE REDUCED TO $1,000,000
IN THE EVENT THAT THE "OPCO DEBTORS" DO NOT EXIT BANKRUPTCY BY OCTOBER 31, 2009
(THE "SEVERANCE BENEFIT"); PROVIDED THAT IF SUCH SEVERANCE BENEFIT BECOMES DUE
BEFORE THE PLAN EFFECTIVE DATE, THE COMPANY SHALL BE OBLIGATED TO PAY THE
MAXIMUM AMOUNT THAT MAY BE PROVIDED AT SUCH TIME IN ACCORDANCE WITH SECTION
503(C)(2) OF THE BANKRUPTCY CODE (AS CONCLUSIVELY DETERMINED BY THE BANKRUPTCY
COURT FOR THE DISTRICT OF DELAWARE), WHICH SHALL BE PAID OVER THE ONE-YEAR
PERIOD COMMENCING ON EXECUTIVE'S TERMINATION OF EMPLOYMENT IN RATABLE
INSTALLMENTS IN ACCORDANCE WITH THE COMPANY'S PAYROLL PRACTICES IN EFFECT ON
EXECUTIVE'S DATE OF TERMINATION OR AS AGREED BETWEEN THE COMPANY AND EXECUTIVE,
SUBJECT TO PARAGRAPH 4.B(V) AND PARAGRAPH 18.C HEREOF AND TO THE EXTENT
PERMITTED BY INTERNAL REVENUE CODE SECTION 409A AND THE REGULATIONS AND GUIDANCE
PROMULGATED THEREUNDER (COLLECTIVELY "SECTION 409A"); PROVIDED, HOWEVER, THAT IF
EXECUTIVE HAS BEEN PAID THE SUCCESS FEE AND IF EXECUTIVE IS TERMINATED WITHOUT
CAUSE (UNDER PARAGRAPH 4.A(III) HEREOF) OR EXECUTIVE TERMINATES HIS EMPLOYMENT
FOR GOOD REASON (UNDER PARAGRAPH 4.A(V) HEREOF) WITHIN TWELVE MONTHS AFTER THE
PLAN EFFECTIVE DATE, THE AMOUNT OF THE SEVERANCE BENEFIT SHALL BE REDUCED BY