commission of the fraud, embezzlement or theft which would serve as the basis of Executives termination for Cause under clause (ii) above, during which investigation the Company may
place Executive on a paid administrative leave of absence and (B) no less than 2/3 of the members of the Board (excluding Executive if Executive is then a member of the Board) shall have made a good faith determination that the Company is
entitled to terminate Executive for Cause under clause (ii) above.
(c) Voluntary Termination shall mean a
termination of employment by Executive on Executives own initiative other than (i) a termination due to Disability or (ii) a termination for Good Reason.
5.4 Termination by the Company without Cause or by Executive for Good Reason. The Company may terminate Executives employment
hereunder without Cause, Executive shall be permitted to terminate Executives employment hereunder for Good Reason (as hereinafter defined) or Executives employment hereunder shall terminate at the end of the Term. If the Company
terminates Executives employment hereunder without Cause, other than due to death or Disability, or if Executive effects a termination for Good Reason or if Executives employment terminates at the end of the Term, Executive shall be
entitled to receive the payments and benefits set forth in this Section 5.4.
(a) So long as Executive has not breached any of the
terms contained in Section 4, Executive shall be entitled to each of the following:
(i) Executives Accrued Employment
(ii) Executives annual Base Salary in effect as of the date of such termination, payable in accordance with the
Companys normal payroll practices; through the end of the term, however, that if Executive is, as of the date of such termination, a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986,
as amended (the Code), any amount that is (1) not treated as a short-term deferral within the meaning of Treas. Regs. §1.409A-1(b)(4), and (2) exceeds the separation pay limit under Treas. Regs.
§1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of Executives annualized compensation based on Executives annual Base Salary for the calendar year preceding the calendar year in which termination occurs (adjusted
for any increase during that year that was expected to continue indefinitely if Executives employment had not been terminated), or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Code
Section 401(a)(17) for the year in which such termination occurs), will not be paid before the date that is six (6) months after such date of termination, or if earlier, the date of Executives death. Any payments or benefits to which
Executive would otherwise be entitled during such non-payment period will be accumulated and paid or otherwise provided to Executive on the first day of the seventh month following such date of termination, or if earlier, within 30 days of
Executives death to his surviving spouse (or to his estate if Executives spouse does not survive him). For purposes of this Section 5.4(a)(ii) and Section 5.4(b), any amount that is paid as a short-term deferral within the
meaning of Treas. Regs. §1.409A-1(b)(4), or within the separation pay limit under Treas. Regs. §1.409A-1(b)(9)(iii)(A) shall be treated as a separate payment, provided the aggregate of the separate payments under this
Section 5.4(a)(ii) shall not exceed an amount equal to two times the Executives annual Base Salary in effect as of the date of such termination or for a period in excess of twenty-four (24) months following any such termination.
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