manner consistent with such intent, although in no event shall the Company have any liability to the Executive if this Notice or the terms hereof are determined not to comply with Section 409A of the Code. For purposes of this Agreement, termination of employment means a separation from service within the meaning of Treasury Regulations Section 1.409A-1(h).
(c) Whenever payment under this Notice specifies a payment period with reference to a number of days (e.g., payment may be made within thirty (30) days after the Payment Date), the actual date of payment within the specified period will be determined solely by the Company.
(d) If the Executive is a specified employee within the meaning of Section 409A of the Code at the time of his or her separation from service within the meaning of Section 409A of the Code, then any payment otherwise required to be made to Executive under this Agreement on account of his or her separation from service, to the extent such payment (after taking into account all exclusions applicable to such payment under Section 409A of the Code) is properly treated as deferred compensation subject to Section 409A of the Code, shall not be made until the first business day after (i) the expiration of six months from the date of the Executives separation from service, or (ii) if earlier, the date of the Executives death.
(e) The Executives right to receive each Executive Retention Bonus shall be treated as separate payments for purposes of Section 409A of the Code.
8. Cause and Good Reason. Unless otherwise defined in a written agreement between the Executive and the Company, for purposes of this Agreement the terms Cause and Good Reason shall have the following meanings:
(a) Cause means:
(i) The commission by the Executive (evidenced by a conviction or written, voluntary and freely given confession) of a criminal act constituting a felony involving fraud or moral turpitude;
(ii) the repeated failure of the Executive to follow the reasonable directives of the Executives superiors after having been given written notice thereof; or
(iii) commission by the Executive of any act, which both (A) constitutes gross negligence or willful misconduct and (B) results in material economic harm to the Company or has a materially adverse effect on the Companys operations, properties or business relationships.
(b) Good Reason means the occurrence of one or more of the following conditions arising without the consent of the Executive:
(i) a material diminution in the Executives annual base salary;
(ii) a material diminution in the Executives duties and responsibilities; or
(iii) a material change in the geographic location at which the Executive must perform his Duties.
In order for a condition to constitute a Good Reason, the Executive must provide written notification to the Company of the existence of the condition within forty-five (45) days of the initial existence of the condition (or within forty-five (45) days following the Executive actually becoming aware of such condition, if later), upon the notice of which the Company shall have a period of thirty (30) days during which it may remedy the condition. Furthermore, to constitute a Good Reason, the Executive must voluntarily terminate employment with the