FACT OR CIRCUMSTANCE IN ENFORCING THE EXECUTIVE'S OR THE COMPANY'S RIGHTS
HEREUNDER.
(C)
COMPANY OBLIGATIONS UPON TERMINATION.
SUBJECT TO SECTION 5, UPON TERMINATION OF THE EXECUTIVE'S EMPLOYMENT, THE
EXECUTIVE (OR THE EXECUTIVE'S ESTATE) SHALL BE ENTITLED TO RECEIVE A LUMP SUM
EQUAL TO THE EXECUTIVE'S ANNUAL BASE SALARY THROUGH THE DATE OF TERMINATION NOT
THERETOFORE PAID, ANY BONUS IF DECLARED OR EARNED BUT NOT YET PAID FOR A
COMPLETED FISCAL YEAR, ANY EXPENSES OWED TO THE EXECUTIVE, ANY ACCRUED VACATION
PAY OWED TO THE EXECUTIVE, AND ANY AMOUNT ARISING FROM THE EXECUTIVE'S
PARTICIPATION IN, OR BENEFITS UNDER ANY EMPLOYEE BENEFIT PLANS, PROGRAMS OR
ARRANGEMENTS, WHICH AMOUNTS SHALL BE PAYABLE IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF SUCH EMPLOYEE BENEFIT PLANS, PROGRAMS OR ARRANGEMENTS.
5.
Severance Payments.
(A)
TERMINATION DUE TO DEATH, DISABILITY, FOR
CAUSE OR RESIGNATION WITHOUT GOOD REASON.
IF THE EXECUTIVE'S EMPLOYMENT SHALL
TERMINATE PURSUANT TO SECTIONS 4(A)(I), (II), (III) OR (VI), THE EXECUTIVE SHALL
NOT BE ENTITLED TO ANY SEVERANCE PAYMENT OR BENEFITS (OTHER THAN AS EXPRESSLY
PROVIDED FOR HEREIN OR UNDER ANY BENEFIT PLAN).
(B)
TERMINATION WITHOUT CAUSE OR RESIGNATION FOR
GOOD REASON .
IF THE EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE COMPANY
WITHOUT CAUSE PURSUANT TO SECTION 4(A)(IV) OR THE EXECUTIVE RESIGNS HIS
EMPLOYMENT FOR GOOD REASON PURSUANT TO SECTION 4(A)(V), THE COMPANY SHALL, SO
LONG AS EXECUTIVE EXECUTES AND DOES NOT REVOKE A GENERAL RELEASE IN THE
COMPANY'S CUSTOMARY FORM (THE "RELEASE"), PAY THE EXECUTIVE A LUMP-SUM AMOUNT
EQUAL TO THREE TIMES THE SUM OF THE EXECUTIVE'S ANNUAL BASE SALARY AND HIS
TARGET LEVEL ANNUAL BONUS. ADDITIONALLY, IF THE EXECUTIVE IS EMPLOYED ON THE
LAST DAY OF THE FISCAL YEAR AND HIS EMPLOYMENT IS TERMINATED BY THE COMPANY
WITHOUT CAUSE PURSUANT TO SECTION 4(A)(IV) OR THE EXECUTIVE RESIGNS HIS
EMPLOYMENT FOR GOOD REASON PURSUANT TO SECTION 4(A)(V) FOLLOWING SUCH DATE BUT
BEFORE THE DATE OF PAYMENT OF THE ANNUAL BONUS AND THE EXECUTIVE HAS NOT YET
BEEN PAID HIS ANNUAL BONUS, SUCH LUMP SUM AMOUNT DESCRIBED IN THE PRECEDING
SENTENCE SHALL ALSO INCLUDE HIS EARNED BUT NOT YET PAID ANNUAL BONUS. THE
PAYMENTS DESCRIBED IN THIS SECTION 5(B) WILL BE MADE WITHIN 30 DAYS FOLLOWING
THE DATE OF TERMINATION, BUT FOLLOWING THE EXPIRATION OF EXECUTIVE'S PERIOD TO
REVOKE THE RELEASE.
(C)
NOTWITHSTANDING ANY PROVISION TO THE
CONTRARY IN THIS AGREEMENT: (I) NO AMOUNT SHALL BE PAYABLE PURSUANT TO
SECTION 5(B) UNLESS THE EXECUTIVE'S TERMINATION OF EMPLOYMENT CONSTITUTES A
"SEPARATION FROM SERVICE" WITHIN THE MEANING OF SECTION 1.409A-1(H) OF THE
DEPARTMENT OF TREASURY REGULATIONS.
IF THE EXECUTIVE IS DEEMED AT THE TIME OF
HIS SEPARATION FROM SERVICE TO BE A "SPECIFIED EMPLOYEE" FOR PURPOSES OF
SECTION 409A(A)(2)(B)(I) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), TO THE EXTENT DELAYED COMMENCEMENT OF ANY PORTION OF THE TERMINATION
BENEFITS TO WHICH EXECUTIVE IS ENTITLED UNDER THIS AGREEMENT IS
10
REQUIRED IN ORDER TO AVOID A PROHIBITED DISTRIBUTION UNDER
SECTION 409A(A)(2)(B)(I) OF THE CODE, SUCH PORTION OF EXECUTIVE'S TERMINATION
BENEFITS SHALL NOT BE PROVIDED