BE ENTITLED
TO RECEIVE, IN LIEU OF ANY OTHER SEVERANCE PROVIDED UNDER ANY OTHER PLAN OR
AGREEMENT, (I) THE GREATER OF (A) DURING THE REMAINDER OF THE EMPLOYMENT TERM, A
MONTHLY PAYMENT EQUAL TO SIXTY PERCENT (60%) OF EXECUTIVE'S MONTHLY BASE SALARY
AT THE HIGHEST RATE IN EFFECT FOR EXECUTIVE DURING THE TWENTY-FOUR (24) MONTH
PERIOD IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF TERMINATION, AND (B) THE
PAYMENTS SET FORTH IN SECTION 3.4(B)(I) ABOVE, AND (II) THE BENEFITS SET FORTH
IN SECTION 3.4(B)(II) ABOVE.
(D)
UPON A TERMINATION OF EXECUTIVE'S EMPLOYMENT FOR ANY REASON,
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 3.4, OR SECTION 9, NO OTHER
PAYMENTS OR BENEFITS SHALL BE DUE UNDER THIS AGREEMENT TO EXECUTIVE.
(E)
FOR PURPOSES OF THIS AGREEMENT, "GOOD REASON" SHALL MEAN THE
OCCURRENCE OF ANY OF THE FOLLOWING EVENTS, WITHOUT THE EXECUTIVE'S WRITTEN
CONSENT, THAT THE COMPANY FAILS TO CURE WITHIN TEN (10) DAYS AFTER RECEIVING
WRITTEN NOTICE THEREOF FROM EXECUTIVE: (I) ASSIGNMENT TO EXECUTIVE OF ANY DUTIES
INCONSISTENT IN ANY MATERIAL RESPECT WITH EXECUTIVE'S POSITION (INCLUDING
STATUS, OFFICES, TITLES AND REPORTING REQUIREMENTS), AUTHORITY, DUTIES OR
RESPONSIBILITIES OR INCONSISTENT WITH EXECUTIVE'S LEGAL OR FIDUCIARY
OBLIGATIONS; (II) ANY REDUCTION IN EXECUTIVE'S COMPENSATION OR SUBSTANTIAL
REDUCTION IN EXECUTIVE'S BENEFITS TAKEN AS A WHOLE; OR (III) BREACH OF ANY
MATERIAL TERM OF THIS AGREEMENT BY THE COMPANY.
(F)
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, THE
COMPANY MAY REQUIRE THAT, PRIOR TO PAYMENT OF ANY AMOUNT OR PROVISION OF ANY
BENEFIT PURSUANT TO SECTION 3.4(B) OR (C) (OTHER THAN THE ACCRUED OBLIGATIONS),
EXECUTIVE SHALL HAVE EXECUTED, ON OR PRIOR TO THE RELEASE EXPIRATION DATE, A
CUSTOMARY GENERAL RELEASE IN FAVOR OF THE COMPANY AND ITS AFFILIATES AND RELATED
PARTIES IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT A, AND ANY WAITING
PERIODS CONTAINED IN SUCH RELEASE SHALL HAVE EXPIRED.
IN THE EVENT THAT
EXECUTIVE FAILS TO EXECUTE A CUSTOMARY GENERAL RELEASE IN FAVOR OF THE COMPANY
AND ITS AFFILIATES AND RELATED PARTIES ON OR PRIOR TO THE RELEASE EXPIRATION
DATE, EXECUTIVE SHALL NOT BE ENTITLED TO ANY PAYMENTS OR BENEFITS PURSUANT TO
SECTION 3.4(B) (OTHER THAN THE ACCRUED OBLIGATIONS).
FOR PURPOSES OF THIS
AGREEMENT, "RELEASE EXPIRATION DATE" SHALL MEAN THE DATE WHICH IS TWENTY-ONE
(21) DAYS FOLLOWING THE EXECUTIVE'S TERMINATION OF EMPLOYMENT, OR, IN THE EVENT
THAT SUCH TERMINATION OF EMPLOYMENT IS "IN CONNECTION WITH AN EXIT INCENTIVE OR
OTHER EMPLOYMENT TERMINATION PROGRAM" (AS SUCH PHRASE IS DEFINED IN THE AGE
DISCRIMINATION
5
in Employment Act of 1967), the date which is forty-five (45) days following the
Executive's termination of employment.
(G)
NOTWITHSTANDING THE FOREGOING, THE PAYMENTS AND BENEFITS
DESCRIBED IN SECTION 3.4(B) (OTHER THAN THE ACCRUED OBLIGATIONS) SHALL
IMMEDIATELY TERMINATE, AND THE COMPANY SHALL HAVE NO FURTHER OBLIGATIONS TO
EXECUTIVE WITH RESPECT THERETO, IN THE EVENT THAT EXECUTIVE BREACHES ANY
PROVISION OF SECTIONS 5, 6, 7 OR 8 HEREOF.
3.5.
NOTICE OF TERMINATION.
ANY TERMINATION OF EXECUTIVE'S EMPLOYMENT
SHALL BE COMMUNICATED BY A WRITTEN NOTICE OF TERMINATION DELIVERED WITHIN THE
TIME PERIOD SPECIFIED IN THIS