TO, THE BEST INTERESTS OF THE COMPANY AND EACH
MEMBER OF THE COMPANY AFFILIATED GROUP.
THE COMPANY SHALL GIVE THE EXECUTIVE 10
DAYS' NOTICE OF THE COMPANY'S INTENTION TO TERMINATE THE EXECUTIVE'S EMPLOYMENT
AND CLAIM THAT FACTS AND CIRCUMSTANCES CONSTITUTING CAUSE EXIST, AND SUCH NOTICE
SHALL DESCRIBE THE FACTS AND CIRCUMSTANCES IN SUPPORT OF SUCH CLAIM.
THE
EXECUTIVE SHALL HAVE 10 DAYS THEREAFTER TO CURE SUCH FACTS AND CIRCUMSTANCES IF
POSSIBLE.
IF THE CHIEF EXECUTIVE OFFICER REASONABLY CONCLUDES THAT THE
EXECUTIVE HAS NOT CURED SUCH FACTS OR CIRCUMSTANCES WITHIN SUCH TIME, CAUSE
SHALL NOT BE DEEMED TO HAVE BEEN ESTABLISHED UNLESS AND UNTIL THE EXECUTIVE HAS
RECEIVED A HEARING BEFORE THE CHIEF EXECUTIVE OFFICER (IF PROMPTLY REQUESTED BY
THE EXECUTIVE) AND THE CHIEF EXECUTIVE OFFICER WITHIN 10 DAYS OF THE DATE OF
SUCH HEARING (IF SO REQUESTED) REASONABLY CONFIRMS THE EXISTENCE OF CAUSE AND
THE TERMINATION OF THE EXECUTIVE THEREFORE.
(F)
EFFECT OF SECTION 409A OF THE INTERNAL REVENUE CODE.
IF THE
EXECUTIVE IS A "SPECIFIED EMPLOYEE" ON THE DATE OF TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT FOR PURPOSES OF SECTION 409A OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND THE REGULATIONS THERE UNDER, NOTWITHSTANDING ANY
PROVISION OF THE AGREEMENT RELATING TO THE TIMING OF PAYMENTS TO THE EXECUTIVE
HEREUNDER, IF SECTION 409A WOULD CAUSE THE IMPOSITION OF THE ADDITIONAL TAX
UNDER SECTION 409A IF PAID AS PROVIDED IN SECTION 6 OF THE AGREEMENT, THEN AS
MUCH OF THE SEVERANCE
PAYMENT AS MAY BE PAID WITHOUT THE IMPOSITION OF THE ADDITIONAL TAX SHALL BE
PAID IN A LUMP SUM AS AFORESAID, AND ANY REMAINING PORTION OF THE SEVERANCE
PAYMENT SHALL BE PAID UPON THE DAY FOLLOWING THE SIX-MONTH ANNIVERSARY OF THE
DATE OF TERMINATION. FOR PURPOSES OF THIS AGREEMENT, "SPECIFIED EMPLOYEE" SHALL
MEAN A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF CODE SECTION 409A(A)(2)(B)(I),
AS DETERMINED BY THE COMPANY'S COMPENSATION COMMITTEE.
(G)
RELEASE; FULL SATISFACTION. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, NO NOTICE OR SEVERANCE PAY SHALL BECOME PAYABLE UNDER THIS
AGREEMENT UNLESS AND UNTIL THE EXECUTIVE EXECUTES A GENERAL RELEASE OF CLAIMS IN
FORM AND MANNER REASONABLY SATISFACTORY TO THE COMPANY AND SUBSTANTIALLY SIMILAR
TO APPENDIX C, AND SUCH RELEASE HAS BECOME IRREVOCABLE (IT BEING THE INTENTION
OF THE PARTIES THAT THE EXECUTIVE PROVIDE THE COMPANY WITH A COMPLETE RELEASE OF
ANY AND ALL CLAIMS AS A CONDITION TO THE RECEIPT OF THE SEVERANCE PAY UNDER THIS
AGREEMENT); PROVIDED, THAT THE EXECUTIVE SHALL NOT BE REQUIRED TO RELEASE ANY
INDEMNIFICATION RIGHTS, CONTINUING RIGHTS TO BENEFITS UNDER THE COMPANY'S
EMPLOYEE BENEFIT PLANS, OR RIGHTS TO FUTURE PAYMENTS OR BENEFITS UNDER THIS
AGREEMENT.
THE PAYMENT OF SEVERANCE PAY TO BE PROVIDED TO THE EXECUTIVE
PURSUANT TO THIS SECTION UPON TERMINATION OF THE EXECUTIVE'S EMPLOYMENT SHALL
CONSTITUTE THE EXCLUSIVE PAYMENT IN THE NATURE OF SEVERANCE OR TERMINATION PAY
OR SALARY CONTINUATION WHICH SHALL BE DUE TO THE EXECUTIVE UPON A TERMINATION OF
EMPLOYMENT AND SHALL BE IN LIEU OF ANY OTHER SUCH PAYMENTS UNDER ANY PLAN,
PROGRAM, POLICY OR OTHER