made by
reducing any cash payments due hereunder subject to Section
409A of the Code;
second by any cash payments due hereunder not subject to Section 409A of the
Code; third by any equity vesting or payments due hereunder subject to Section
409A of the Code; and lastly by any equity vesting or payments due hereunder not
subject to Section
409A of the Code.
4.5
AMENDMENT OR TERMINATION OF THIS AGREEMENT.
THE COMPANY MAY MAKE
AMENDMENTS TO THIS AGREEMENT WITHOUT THE CONSENT OF THE EXECUTIVE WHICH ARE
NON-MATERIAL AND WHICH ARE NOT ADVERSE TO THE EXECUTIVE TO THE EXTENT NECESSARY
OR ADVISABLE TO COMPLY WITH LAWS.
ANY OTHER CHANGES TO OR, TERMINATIONS OF THIS
AGREEMENT MAY BE MADE ONLY UPON THE MUTUAL WRITTEN CONSENT OF THE COMPANY AND
EXECUTIVE; PROVIDED, HOWEVER, THAT ONLY PRIOR TO THE SECTION 1.2 DATE, THE
COMPANY MAY UNILATERALLY TERMINATE THIS AGREEMENT FOLLOWING EIGHTEEN (18)
MONTHS' PRIOR WRITTEN NOTICE TO EXECUTIVE, AND ON OR FOLLOWING THE SECTION 1.2
DATE THIS AGREEMENT MAY NOT BE TERMINATED.
IF THE COMPANY MAKES ANY CHANGES TO
THIS AGREEMENT PURSUANT TO THE FIRST SENTENCE OF THIS SECTION 4.5 IT SHALL
PROVIDE PROMPT WRITTEN NOTICE AND A COPY OF SUCH CHANGE TO THE EXECUTIVE.
ARTICLE V.
OTHER RIGHTS AND BENEFITS NOT AFFECTED
5.1
NONEXCLUSIVITY.
NOTHING IN THE AGREEMENT SHALL PREVENT OR LIMIT
EXECUTIVE'S CONTINUING OR FUTURE PARTICIPATION IN ANY BENEFIT, BONUS, INCENTIVE
OR OTHER PLANS, PROGRAMS, POLICIES OR PRACTICES PROVIDED BY THE COMPANY AND FOR
WHICH EXECUTIVE MAY OTHERWISE QUALIFY, NOR SHALL ANYTHING HEREIN LIMIT OR
OTHERWISE AFFECT SUCH RIGHTS AS EXECUTIVE MAY HAVE UNDER ANY STOCK OPTION OR
OTHER AGREEMENTS WITH THE COMPANY; PROVIDED, HOWEVER, THAT IN ACCORDANCE WITH
SECTION 4.1, ANY BENEFITS PROVIDED HEREUNDER SHALL BE IN LIEU OF ANY OTHER
SEVERANCE BENEFITS TO WHICH EXECUTIVE MAY OTHERWISE BE ENTITLED, INCLUDING
WITHOUT LIMITATION, UNDER ANY EMPLOYMENT CONTRACT OR SEVERANCE PLAN.
EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, AMOUNTS WHICH ARE VESTED BENEFITS OR WHICH
EXECUTIVE IS OTHERWISE ENTITLED TO RECEIVE UNDER ANY PLAN, POLICY, PRACTICE OR
PROGRAM OF THE COMPANY AT OR SUBSEQUENT TO THE DATE OF A TERMINATION EVENT SHALL
BE PAYABLE IN ACCORDANCE WITH SUCH PLAN, POLICY, PRACTICE OR PROGRAM.
5.2
EMPLOYMENT STATUS.
THIS AGREEMENT DOES NOT CONSTITUTE A CONTRACT
OF EMPLOYMENT OR IMPOSE ON EXECUTIVE ANY OBLIGATION TO REMAIN AS AN EMPLOYEE, OR
IMPOSE ON THE COMPANY ANY OBLIGATION (I) TO RETAIN EXECUTIVE AS AN EMPLOYEE,
(II) TO CHANGE THE STATUS OF
9
EXECUTIVE AS AN AT-WILL EMPLOYEE, OR (III) TO CHANGE THE COMPANY'S POLICIES
REGARDING TERMINATION OR ALTERATION OF EMPLOYMENT.
ARTICLE VI.
NON-ALIENATION OF BENEFITS
No benefit hereunder shall be subject to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt to do so
shall be void.
ARTICLE VII.
DEFINITIONS
For purposes of the Agreement, the following terms shall have the meanings set
forth below:
7.1
"AGREEMENT" MEANS THIS CHANGE OF CONTROL SEVERANCE AGREEMENT.
7.2
"BASE SALARY" MEANS EXECUTIVE'S ANNUAL SALARY (EXCLUDING BONUS, ANY
OTHER INCENTIVE OR OTHER PAYMENTS AND STOCK OPTION EXERCISES)