WITH
SECTION 409A (INCLUDING, BUT NOT LIMITED TO, DELAYING PAYMENT UNTIL SIX MONTHS
FOLLOWING TERMINATION OF EMPLOYMENT)
(J)
REGISTRATION.
THE COMPANY WILL USE ITS BEST EFFORTS TO FILE WITH
THE SECURITIES AND EXCHANGE COMMISSION AND THEREAFTER MAINTAIN THE EFFECTIVENESS
OF ONE OR MORE REGISTRATION STATEMENTS REGISTERING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, THE OFFER AND SALE OF SHARES BY THE COMPANY TO EXECUTIVE
PURSUANT TO STOCK OPTIONS OR OTHER EQUITY-BASED AWARDS GRANTED TO EXECUTIVE
UNDER COMPANY PLANS AND THIS AGREEMENT.
5.
TERMINATION OF EMPLOYMENT.
EXECUTIVE'S EMPLOYMENT HEREUNDER MAY
BE TERMINATED PRIOR TO THE END OF THE TERM UNDER THE FOLLOWING CIRCUMSTANCES:
(A)
TERMINATION BY EXECUTIVE FOR OTHER THAN GOOD REASON.
EXECUTIVE
MAY TERMINATE HIS EMPLOYMENT HEREUNDER FOR ANY REASON OR NO REASON UPON 45 DAYS'
PRIOR WRITTEN NOTICE TO THE COMPANY REFERRING TO THIS SECTION 5(A); PROVIDED,
HOWEVER, THAT A TERMINATION OF EXECUTIVE'S EMPLOYMENT FOR "GOOD REASON" SHALL
NOT CONSTITUTE A
9
termination by Executive for other than Good Reason pursuant to this Section
5(a).
In the event Executive terminates his employment for other than Good
Reason, Executive shall be entitled only to the following compensation and
benefits:
(I)
ANY ACCRUED BUT UNPAID BASE SALARY (AS DETERMINED PURSUANT TO
SECTION 4(A)) FOR SERVICES RENDERED TO THE TERMINATION DATE, PAYABLE ON THE NEXT
REGULAR PAYDAY FOLLOWING THE TERMINATION DATE;
(II)
ALL VESTED NONFORFEITABLE AMOUNTS OWING OR ACCRUED AT THE
TERMINATION DATE UNDER COMPENSATION AND BENEFIT PLANS, PROGRAMS, AND
ARRANGEMENTS SET FORTH OR REFERRED TO IN SECTION 4 HEREOF IN WHICH EXECUTIVE
THERETOFORE PARTICIPATED (INCLUDING, WITHOUT LIMITATION, ANY EARNED AND VESTED
ANNUAL INCENTIVE COMPENSATION AND THE SERP BENEFIT) WILL BE PAID UNDER THE TERMS
AND CONDITIONS OF SUCH PLANS, PROGRAMS, AND ARRANGEMENTS (AND AGREEMENTS AND
DOCUMENTS THEREUNDER);
(III)
REASONABLE BUSINESS EXPENSES AND DISBURSEMENTS INCURRED BY
EXECUTIVE PRIOR TO SUCH TERMINATION WILL BE REIMBURSED IN ACCORDANCE WITH
SECTION 4(E).
(IV)
IN LIEU OF ANY INCENTIVE COMPENSATION UNDER SECTION 4(B) FOR THE
YEAR OF TERMINATION, AN AMOUNT EQUAL TO THE AMOUNT OF ANNUAL INCENTIVE
COMPENSATION PAYABLE TO EXECUTIVE ASSUMING ACHIEVEMENT OF THE MAXIMUM
PERFORMANCE TARGETS FOR SUCH YEAR, MULTIPLIED BY A FRACTION THE NUMERATOR OF
WHICH IS THE NUMBER OF DAYS EXECUTIVE WAS EMPLOYED IN THE YEAR OF TERMINATION
AND THE DENOMINATOR OF WHICH IS THE TOTAL NUMBER OF DAYS IN THE YEAR OF
TERMINATION.
SUCH AMOUNT SHALL BE PAYABLE IN A LUMP SUM IN ACCORDANCE WITH
SECTION 5(F) OF THIS AGREEMENT;
(V)
STOCK OPTIONS HELD BY EXECUTIVE AT TERMINATION, IF NOT THEN VESTED
AND EXERCISABLE, WILL BECOME FULLY VESTED AND EXERCISABLE AT THE DATE OF SUCH
TERMINATION, EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROVIDED UNDER THE
TERMS OF ANY "NON-ORDINARY COURSE GRANT OR AWARD" (AS DEFINED BELOW) MADE TO
EXECUTIVE AFTER DECEMBER 31, 2005, AND ANY SUCH OPTIONS SHALL REMAIN EXERCISABLE
UNTIL THE EARLIER OF THREE YEARS AFTER THE DATE OF SUCH TERMINATION OR THE
SCHEDULED EXPIRATION DATE, AND, IN OTHER RESPECTS, ALL SUCH OPTIONS SHALL BE
GOVERNED BY THE PLANS AND PROGRAMS AND THE AGREEMENTS AND OTHER DOCUMENTS
PURSUANT