YEAR IN WHICH TERMINATION OCCURS,
PRO-RATED FOR THE PERIOD THE EMPLOYEE WORKED PRIOR TO SUCH TERMINATION PROVIDED
THAT THE EMPLOYEE HAS WORKED AT LEAST 6 MONTHS IN THE FISCAL YEAR FOR WHICH THE
BONUS IS PAYABLE, WHICH AMOUNT SHALL BE PAID AT SUCH TIME STI AWARDS ARE PAID TO
OTHER SENIOR EXECUTIVES OF THE COMPANY, BUT IN NO EVENT LATER THAN ONE DAY PRIOR
TO THE DATE THAT IS 2 1/2 MONTHS FOLLOWING THE LAST DAY OF THE FISCAL YEAR IN
WHICH SUCH TERMINATION OCCURS;
(IV)
A LUMP-SUM CASH PAYMENT EQUAL TO TWENTY-FOUR (24) MONTHS OF THE
EMPLOYEE'S BASE SALARY, WHICH AMOUNT SHALL BE PAID IN A LUMP SUM WITHIN TEN
(10) BUSINESS DAYS FOLLOWING THE CLOSING OF SUCH CHANGE OF CONTROL; AND
(V)
IMMEDIATE VESTING OF ALL COMMON SHARES, INCLUDING LTI AWARDS,
PREVIOUSLY ISSUED.
Following such termination of Employee's employment following a Change of
Control, except as set forth in this Section 8(g), Employee shall have no
further rights to any compensation or any other benefits under this Agreement.
(I)
RELEASE.
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY,
THE COMPANY MAY REQUIRE THAT, PRIOR TO PAYMENT OF ANY AMOUNT OR PROVISION OF ANY
BENEFIT PURSUANT TO SUBSECTION (D), (E), OR (H) OR PURSUANT TO CLAUSES
(III) THROUGH (V) OF SUBSECTION (G) OF THIS SECTION 8 (OTHER THAN THE ACCRUED
OBLIGATIONS), EMPLOYEE SHALL HAVE EXECUTED, ON OR PRIOR TO THE RELEASE
EXPIRATION DATE, A CUSTOMARY GENERAL RELEASE IN FAVOR OF THE COMPANY GROUP IN
SUCH FORM AS IS REASONABLY REQUIRED BY THE COMPANY, AND ANY WAITING PERIODS
CONTAINED IN SUCH RELEASE SHALL HAVE EXPIRED.
TO THE EXTENT THAT THE COMPANY
REQUIRES EXECUTION OF SUCH RELEASE, THE COMPANY SHALL DELIVER SUCH RELEASE TO
EMPLOYEE WITHIN TEN (10) BUSINESS DAYS FOLLOWING THE TERMINATION OF EMPLOYEE'S
EMPLOYMENT HEREUNDER, AND THE COMPANY'S FAILURE TO DELIVER SUCH RELEASE PRIOR TO
THE EXPIRATION OF SUCH TEN (10) BUSINESS DAY PERIOD SHALL CONSTITUTE A WAIVER OF
ANY REQUIREMENT TO EXECUTE SUCH RELEASE.
ASSUMING A TIMELY DELIVERY OF THE
RELEASE BY THE COMPANY, IF EMPLOYEE FAILS TO EXECUTE SUCH RELEASE ON OR PRIOR TO
THE RELEASE EXPIRATION DATE OR TIMELY REVOKES HIS ACCEPTANCE OF SUCH RELEASE
THEREAFTER, EMPLOYEE SHALL NOT BE ENTITLED TO ANY PAYMENTS OR BENEFITS PURSUANT
TO SUBSECTION (D), (E), OR (H) OR PURSUANT TO CLAUSES (III) THROUGH (V) OF
SUBSECTION (G)
9
OF THIS SECTION 8 (OTHER THAN THE ACCRUED OBLIGATIONS).
NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, IN ANY CASE WHERE THE DATE OF TERMINATION AND
THE RELEASE EXPIRATION DATE FALL IN TWO SEPARATE TAXABLE YEARS, ANY PAYMENTS
REQUIRED TO BE MADE TO EMPLOYEE THAT ARE TREATED AS DEFERRED COMPENSATION FOR
PURPOSES OF SECTION 409A OF THE CODE SHALL BE MADE IN THE LATER TAXABLE YEAR.
SECTION 9.
RESTRICTIVE COVENANTS.
EMPLOYEE ACKNOWLEDGES AND AGREES
THAT (A) THE AGREEMENTS AND COVENANTS CONTAINED IN THIS SECTION 9 ARE
(I) REASONABLE AND VALID IN GEOGRAPHICAL AND TEMPORAL SCOPE AND IN ALL OTHER
RESPECTS AND (II) ESSENTIAL TO PROTECT THE VALUE OF THE BUSINESS AND ASSETS OF
THE