PURPOSES OF THIS
AGREEMENT, A "NOTICE OF TERMINATION" MEANS A WRITTEN NOTICE WHICH (I) INDICATES
THE SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON, (II) TO THE
EXTENT APPLICABLE, SETS FORTH IN REASONABLE DETAIL THE FACTS AND CIRCUMSTANCES
CLAIMED TO PROVIDE A BASIS FOR TERMINATION OF THE EXECUTIVE'S EMPLOYMENT UNDER
THE PROVISION SO INDICATED AND (III) IF THE DATE OF TERMINATION (AS DEFINED
BELOW) IS OTHER THAN THE DATE OF RECEIPT OF SUCH NOTICE, SPECIFIES THAT
TERMINATION DATE (WHICH DATE SHALL BE NOT MORE THAN THIRTY DAYS AFTER THE GIVING
OF SUCH NOTICE).
THE FAILURE BY THE EXECUTIVE OR THE COMPANY TO SET FORTH IN
THE NOTICE OF TERMINATION ANY FACT OR CIRCUMSTANCE WHICH CONTRIBUTES TO A
SHOWING OF GOOD REASON OR CAUSE SHALL NOT WAIVE ANY RIGHT OF THE EXECUTIVE OR
THE COMPANY, RESPECTIVELY, HEREUNDER OR PRECLUDE THE EXECUTIVE OR THE COMPANY,
RESPECTIVELY, FROM ASSERTING SUCH FACT OR CIRCUMSTANCE IN ENFORCING THE
EXECUTIVE'S OR THE COMPANY'S RIGHTS HEREUNDER.
(E)
DATE OF TERMINATION.
"DATE OF TERMINATION"
MEANS (I) IF THE EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE COMPANY FOR CAUSE,
OR BY THE EXECUTIVE FOR GOOD REASON, THE DATE OF RECEIPT OF THE NOTICE OF
TERMINATION OR ANY LATER DATE SPECIFIED THEREIN, AS THE CASE MAY BE, (II) IF THE
EXECUTIVE EMPLOYMENT IS TERMINATED BY THE COMPANY OTHER THAN FOR CAUSE OR
DISABILITY, THE DATE OF TERMINATION SHALL BE THE DATE ON WHICH THE COMPANY
NOTIFIES THE EXECUTIVE OF SUCH TERMINATION AND (III) IF THE EXECUTIVE'S
EMPLOYMENT IS TERMINATED BY REASON OF DEATH OR DISABILITY, THE DATE OF
TERMINATION SHALL BE THE DATE OF DEATH OF THE EXECUTIVE OR THE DISABILITY
EFFECTIVE DATE, AS THE CASE MAY BE.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT
SHALL THE DATE OF TERMINATION OCCUR UNTIL THE EXECUTIVE EXPERIENCES A
"SEPARATION FROM SERVICE" WITHIN THE MEANING OF SECTION 409A OF THE CODE, AND
THE DATE ON WHICH SUCH SEPARATION FROM SERVICE TAKES PLACE SHALL BE THE "DATE OF
TERMINATION."
"SEPARATION FROM SERVICE" SHALL MEAN A "SEPARATION FROM SERVICE"
WITHIN THE MEANING OF SECTION 409A OF THE CODE, AS DETERMINED BY THE COMPANY IN
ACCORDANCE WITH SECTION 1.409A-1(H) OF THE TREASURY REGULATIONS.
FOR PURPOSES
OF DETERMINING WHETHER A SEPARATION FROM SERVICE HAS OCCURRED, THE EXECUTIVE
SHALL BE CONSIDERED TO HAVE SEPARATED FROM SERVICE AS AN EMPLOYEE WHEN THE FACTS
AND CIRCUMSTANCES INDICATE THAT THE EXECUTIVE AND THE COMPANY REASONABLY
ANTICIPATE THAT EITHER (I) NO FURTHER SERVICES WILL BE PERFORMED FOR THE COMPANY
(INCLUDING ANY AFFILIATES) AFTER A CERTAIN DATE, OR (II) THAT THE LEVEL OF BONA
FIDE SERVICES THE EXECUTIVE WILL PERFORM FOR THE COMPANY (INCLUDING ANY
AFFILIATES) AFTER SUCH DATE (WHETHER AS AN EMPLOYEE OR AS AN INDEPENDENT
CONTRACTOR) WILL PERMANENTLY DECREASE TO NO MORE THAN 20% OF THE AVERAGE LEVEL
OF BONA FIDE SERVICES PERFORMED BY THE EXECUTIVE (WHETHER AS AN EMPLOYEE OR AN
INDEPENDENT CONTRACTOR) OVER THE IMMEDIATELY PRECEDING 36-MONTH PERIOD (OR THE
FULL PERIOD OF SERVICES TO THE COMPANY IF THE EXECUTIVE HAS BEEN PROVIDING
SERVICES TO THE COMPANY LESS THAN 36 MONTHS).