months in the aggregate during the twelve (12) month period immediately following such certification.
g.Definition of “Good Reason”. For purposes of this Agreement, “Good Reason” means the occurrence of any of the following, in each case, during the Executive’s employment without the Executive’s written consent: (i) a decrease in the Executive’s base salary or annual bonus opportunity, other than a decrease in annual bonus opportunity that applies to all similarly situated executives of the Company; (ii) a material diminution in the Executive’s duties and responsibilities (other than temporarily while the Executive is physically or mentally incapacitated), or an adverse change in the reporting structure applicable to the Executive; (iii) a relocation of the Executive’s primary work location more than thirty (30) miles from the Executive’s primary work location on the date hereof; (iv) any material breach by the Company of any material provision of this Agreement or any material provision of any other agreement between the Executive and the Company; or (v) failure of any successor to the Company to assume this Agreement, except where such assumption occurs by operation of law; provided that, within thirty (30) days following the occurrence of any of the events set forth in clauses (i) through (v), the Executive shall have delivered written notice to the Company of the Executive’s intention to terminate the Executive’s employment with Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to the Executive’s right to terminate employment with Good Reason, and the Company shall not have cured such circumstances within thirty (30) days following the Company’s receipt of such notice.
e.Funding of Retention Bonus. The Company may, but is not required to, fund the Retention Bonus described in this Agreement. In any event, the obligation of the Company hereunder will constitute a general, unsecured obligation, payable solely out of its general assets (which assets are subject to the claims of the Company’s general unsecured creditors in the event of the Company’s insolvency), and the Executive will not have any right to any specific assets of the Company. If the Company becomes insolvent, the Executive will have only the rights of a general unsecured creditor against the Company for any amounts due under this Agreement.
2.General Provisions. The following general provisions apply to this Agreement:
a.Code Section 409A. The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations and guidance promulgated thereunder (collectively, “Section 409A”), and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement that is considered nonqualified deferred compensation. Notwithstanding any other provision of this Agreement to the contrary, if the Executive is considered a “specified employee” for purposes of Section 409A (as determined in accordance with the methodology established by the Company as in effect on the date on which the Executive’s employment with the Company terminates), any payment that constitutes nonqualified deferred compensation within the meaning of Section 409A that is otherwise due to the Executive under this Agreement during the six (6) month period following the Executive’s separation from service (determined in accordance with Section 409A) on account of the Executive’s separation from service shall be accumulated and paid to the Executive on the first business day of the seventh month following the Executive’s separation from