THE EXPIRATION OF THAT
CURE PERIOD.
H.
IN ADDITION, IF EMPLOYEE RESIGNS FOR ANY REASON (OTHER THAN A
RESIGNATION IN ANTICIPATION OF A TERMINATION FOR CAUSE) DURING THE 18 MONTH
PERIOD IMMEDIATELY FOLLOWING ANY CHANGE IN CONTROL (AS DEFINED BELOW), HE WILL
BE ENTITLED TO THE SEVERANCE BENEFITS DESCRIBED ABOVE IN PARAGRAPH 2(B)(SUBJECT
TO THE EXECUTION OF THE RELEASE AGREEMENT DESCRIBED IN PARAGRAPH 2.F).
I.
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT,
ALL SALARY, BENEFITS AND OTHER AMOUNTS PAYABLE BY THE COMPANY TO EMPLOYEE SHALL
CEASE AT THE TIME OF ANY CESSATION OF HIS EMPLOYMENT WITH THE COMPANY, SUBJECT
TO THE TERMS OF ANY BENEFIT OR COMPENSATION PLANS THEN IN FORCE AND APPLICABLE
TO EMPLOYEE.
3.
TIMING OF PAYMENTS FOLLOWING TERMINATION.
TO THE EXTENT
COMPLIANCE WITH THE REQUIREMENTS OF TREAS. REG. § 1.409A-3(I)(2) (OR ANY
SUCCESSOR PROVISION) IS NECESSARY TO AVOID THE APPLICATION OF AN ADDITIONAL TAX
UNDER SECTION 409A OF THE CODE TO PAYMENTS DUE TO EMPLOYEE UPON OR FOLLOWING HIS
SEPARATION FROM SERVICE, THEN NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT (OR ANY OTHERWISE APPLICABLE PLAN, POLICY, AGREEMENT OR ARRANGEMENT),
ANY SUCH PAYMENTS THAT ARE OTHERWISE DUE WITHIN SIX MONTHS FOLLOWING EMPLOYEE'S
SEPARATION FROM SERVICE WILL BE DEFERRED (WITHOUT INTEREST) AND PAID TO
EMPLOYEE IN A LUMP SUM IMMEDIATELY FOLLOWING THAT SIX MONTH PERIOD.
THIS
PROVISION SHALL NOT BE CONSTRUED AS PREVENTING AN AMOUNT OF SEVERANCE UP TO 2
TIMES THE LESSER OF (A) EMPLOYEE'S ANNUALIZED COMPENSATION FOR THE YEAR PRIOR TO
THE YEAR OF TERMINATION OR RESIGNATION, AS APPLICABLE, AND (B) THE MAXIMUM
AMOUNT THAT MAY BE TAKEN INTO ACCOUNT UNDER A QUALIFIED PLAN PURSUANT TO SECTION
401(A)(17) OF THE CODE, BEING PAID TO EMPLOYEE IN THE FIRST 6 MONTHS FOLLOWING
HIS TERMINATION OR RESIGNATION, AS APPLICABLE.
4.
CHANGE OF CONTROL.
A.
FOR PURPOSES OF THIS AGREEMENT, A CHANGE OF CONTROL SHALL HAVE
OCCURRED IF ANY OF THE FOLLOWING EVENTS SHALL OCCUR: (1) THE SALE, TRANSFER,
ASSIGNMENT OR OTHER DISPOSITION (INCLUDING BY MERGER OR CONSOLIDATION) BY
STOCKHOLDERS OF THE COMPANY, IN ONE TRANSACTION OR A SERIES OF RELATED
TRANSACTIONS, OF MORE THAN THIRTY-FIVE PERCENT (35%) OF THE VOTING POWER
REPRESENTED BY THE THEN OUTSTANDING STOCK OF THE COMPANY TO ONE OR MORE PERSONS
(AS DEFINED BELOW), OTHER THAN ANY SUCH SALES, TRANSFERS, ASSIGNMENTS OR OTHER
DISPOSITIONS BY SUCH STOCKHOLDERS TO THEIR RESPECTIVE AFFILIATES (AS DEFINED
BELOW); (2) THE COMPANY SELLS ALL OR SUBSTANTIALLY ALL OF ITS ASSETS TO ANY
OTHER PERSON IN ANY SALE OR SERIES OF RELATED SALES (OTHER THAN A TRANSACTION TO
WHICH ONLY THE COMPANY AND ONE OR MORE OF ITS SUBSIDIARIES ARE PARTIES); OR (3)
ANY PERSON BECOMES A DIRECT OR INDIRECT BENEFICIAL OWNER OF SHARES OF STOCK OF
THE COMPANY REPRESENTING THE AGGREGATE OF 35% OR MORE OF THE VOTES THEN ENTITLED
TO BE CAST AT AN ELECTION OF DIRECTORS OF THE COMPANY (UNLESS A VOTING AGREEMENT
REMAINS IN EFFECT IN RESPECT OF GREATER THEN 51% OF SUCH SHARES).
B.
EMPLOYEE HEREBY AGREES THAT IF HIS EMPLOYMENT WITH THE COMPANY