OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED AND POSTAGE PREPAID.
IN THE CASE OF EMPLOYEE, MAILED
NOTICES WILL BE ADDRESSED TO HIM OR HER AT THE HOME ADDRESS WHICH HE OR SHE MOST
RECENTLY COMMUNICATED TO THE COMPANY IN WRITING.
IN THE CASE OF THE COMPANY,
MAILED NOTICES WILL BE ADDRESSED TO ITS CORPORATE HEADQUARTERS, AND ALL NOTICES
WILL BE DIRECTED TO THE ATTENTION OF ITS PRESIDENT.
(B)
NOTICE OF TERMINATION.
ANY TERMINATION BY THE COMPANY FOR CAUSE
OR BY EMPLOYEE FOR GOOD REASON OR AS A RESULT OF A VOLUNTARY RESIGNATION WILL BE
COMMUNICATED BY A NOTICE OF TERMINATION TO THE OTHER PARTY HERETO GIVEN IN
ACCORDANCE WITH SECTION 8(A) OF THIS AGREEMENT.
SUCH NOTICE WILL INDICATE THE
SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON, WILL SET FORTH IN
REASONABLE DETAIL THE FACTS AND CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR
TERMINATION UNDER THE PROVISION SO INDICATED, AND WILL SPECIFY THE TERMINATION
DATE (WHICH WILL BE NOT MORE THAN THIRTY (30) DAYS AFTER THE GIVING OF SUCH
NOTICE).
THE FAILURE BY EMPLOYEE TO INCLUDE IN THE NOTICE ANY FACT OR
CIRCUMSTANCE WHICH CONTRIBUTES TO A SHOWING OF GOOD REASON WILL NOT WAIVE ANY
RIGHT OF EMPLOYEE HEREUNDER OR PRECLUDE EMPLOYEE FROM ASSERTING SUCH FACT OR
CIRCUMSTANCE IN ENFORCING HIS OR HER RIGHTS HEREUNDER.
9.
MISCELLANEOUS PROVISIONS.
(A)
CODE SECTION 409A.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, IF EMPLOYEE IS A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF
SECTION 409A OF THE CODE
8
AND ANY FINAL REGULATIONS AND GUIDANCE PROMULGATED THEREUNDER, AS THEY EACH MAY
BE AMENDED FROM TIME TO TIME ("SECTION 409A") AT THE TIME OF EMPLOYEE'S
TERMINATION OTHER THAN DUE TO EMPLOYEE'S DEATH (PROVIDED THAT SUCH TERMINATION
IS A "SEPARATION FROM SERVICE" WITHIN THE MEANING OF SECTION 409A, AS DETERMINED
BY THE COMPANY), THEN ONLY THAT PORTION OF THE CASH SEVERANCE AND SHARES SUBJECT
TO ACCELERATED RSUS PAYABLE TO EMPLOYEE PURSUANT TO THIS AGREEMENT, IF ANY, AND
ANY OTHER SEVERANCE PAYMENTS OR SEPARATION BENEFITS, IN EACH CASE WHICH MAY BE
CONSIDERED DEFERRED COMPENSATION UNDER SECTION 409A (TOGETHER, THE "DEFERRED
COMPENSATION SEPARATION BENEFITS"), WHICH (WHEN CONSIDERED TOGETHER) DO NOT
EXCEED THE SECTION 409A LIMIT (AS DEFINED HEREIN) MAY BE MADE WITHIN THE FIRST
SIX (6) MONTHS FOLLOWING EMPLOYEE'S TERMINATION OF EMPLOYMENT IN ACCORDANCE WITH
THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
ANY PORTION OF THE
DEFERRED COMPENSATION SEPARATION BENEFITS IN EXCESS OF THE SECTION 409A LIMIT
OTHERWISE DUE TO EMPLOYEE ON OR WITHIN THE SIX (6) MONTH PERIOD FOLLOWING
EMPLOYEE'S TERMINATION WILL ACCRUE DURING SUCH SIX (6) MONTH PERIOD AND WILL
BECOME PAYABLE IN A LUMP SUM PAYMENT ON THE DATE SIX (6) MONTHS AND ONE (1) DAY
FOLLOWING THE DATE OF EMPLOYEE'S TERMINATION OF EMPLOYMENT.
ALL SUBSEQUENT
DEFERRED COMPENSATION SEPARATION BENEFITS, IF ANY, WILL BE PAYABLE IN ACCORDANCE
WITH THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF EMPLOYEE DIES FOLLOWING HIS
TERMINATION BUT PRIOR TO THE SIX MONTH ANNIVERSARY OF HIS DATE OF TERMINATION,
THEN