IN
A LUMP SUM OR IN ACCORDANCE WITH NORMAL PAYROLL PRACTICES. ANY PORTION OF ANY OF
THE EXECUTIVE'S BASE SALARY TO BE PAID PURSUANT TO I(B) AND II(B) ABOVE THAT
CONSTITUTES NONQUALIFIED DEFERRED COMPENSATION WITHIN THE MEANING OF
SECTION 409A SHALL BE PAID IN A LUMP SUM.
ANY OBLIGATION OF THE COMPANY TO PROVIDE THE EXECUTIVE SEVERANCE PAYMENTS OR
OTHER BENEFITS UNDER THIS SECTION 5(A) IS CONDITIONED ON THE EXECUTIVE SIGNING
AN EFFECTIVE RELEASE OF CLAIMS IN THE FORM PROVIDED BY THE COMPANY (THE
"EMPLOYEE RELEASE") FOLLOWING THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT,
WHICH RELEASE SHALL NOT APPLY TO (I) CLAIMS FOR INDEMNIFICATION IN THE
EXECUTIVE'S CAPACITY AS AN OFFICER OR DIRECTOR OF THE COMPANY UNDER THE
COMPANY'S CERTIFICATE OF INCORPORATION, BY-LAWS OR AGREEMENT, IF ANY, PROVIDING
FOR DIRECTOR OR OFFICER INDEMNIFICATION, (II) RIGHTS TO RECEIVE INSURANCE
PAYMENTS UNDER ANY POLICY MAINTAINED BY THE COMPANY AND (III) RIGHTS TO RECEIVE
RETIREMENT BENEFITS THAT ARE ACCRUED AND FULLY VESTED AT THE TIME OF THE
EXECUTIVE'S TERMINATION.
ANY SEVERANCE PAYMENTS TO BE MADE IN THE FORM OF
SALARY CONTINUATION PURSUANT TO THE TERMS OF THIS AGREEMENT SHALL BE PAYABLE IN
ACCORDANCE WITH THE NORMAL PAYROLL PRACTICES OF THE COMPANY, AND WILL BEGIN AT
THE COMPANY'S NEXT REGULAR PAYROLL PERIOD FOLLOWING THE EFFECTIVE DATE OF THE
EMPLOYEE RELEASE, BUT SHALL BE RETROACTIVE TO THE DATE OF TERMINATION. THE
EXECUTIVE AGREES TO PROVIDE THE COMPANY PROMPT NOTICE OF THE EXECUTIVE'S
ELIGIBILITY TO PARTICIPATE IN THE HEALTH PLAN AND, IF APPLICABLE, DENTAL PLAN OF
ANY EMPLOYER.
THE EXECUTIVE FURTHER AGREES TO REPAY ANY OVERPAYMENT OF HEALTH
BENEFIT PREMIUMS MADE BY THE COMPANY HEREUNDER.
(B)
TERMINATION OTHER THAN PURSUANT TO
SECTION 4(B), 4(C) OR 4(E).
IN THE EVENT OF ANY TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT, OTHER THAN A TERMINATION BY THE COMPANY PURSUANT TO SECTION 4(B) OF
THIS AGREEMENT, A TERMINATION BY THE EXECUTIVE FOR GOOD REASON PURSUANT TO
SECTION 4(C) OF THIS AGREEMENT OR A TERMINATION AS A RESULT OF THE EXECUTIVE'S
DEATH OR DISABILITY PURSUANT TO SECTION 4(E) OF THIS AGREEMENT, THE COMPANY WILL
PAY THE EXECUTIVE ANY BASE SALARY EARNED BUT NOT PAID THROUGH THE DATE OF
TERMINATION AND PAY FOR ANY VACATION TIME ACCRUED BUT NOT USED TO THAT DATE.
IN
ADDITION, THE COMPANY WILL PAY THE EXECUTIVE ANY BONUS WHICH HAS BEEN AWARDED TO
THE EXECUTIVE, BUT NOT YET PAID ON THE DATE OF TERMINATION OF THE
6
EXECUTIVE'S EMPLOYMENT. THE COMPANY SHALL HAVE NO OTHER OBLIGATION TO THE
EXECUTIVE UNDER THIS AGREEMENT.
(c)
Upon a Change of Control.
(i)
If a Change of Control (as defined in
Section 6 hereof) occurs, twenty-five percent (25%) of the Executive's stock
options and restricted stock which, by their terms, vest only based on the
passage of time (disregarding any acceleration of the vesting of such options
based on individual or Company performance) shall vest as of the date of such
Change of Control, provided that no more than one hundred-percent (100%) of the
total shares may vest at any time. If, within