For purposes of this Section 1.1, no act or failure to act by the Executive shall beconsidered “willful” unless it is done, or omitted to be done, in bad faith and without reasonablebelief that the Executive’s action or omission was in the best interests of the Company.1.2 “Change in Control” means an event or occurrence set forth in any one or moreof subsections (a) through (d) below (including an event or occurrence that constitutes aChange in Control under one of such subsections but is specifically exempted from another suchsubsection):(a) the acquisition by an individual, entity or group (within the meaning ofSection 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the“Exchange Act”)) (a “Person”) of beneficial ownership of any capital stock of theCompany if, after such acquisition, such Person beneficially owns (within the meaning ofRule 13d-3 promulgated under the Exchange Act) 50% or more of either (x) thethen-outstanding shares of common stock of the Company (the “Outstanding Company CommonStock”) or (y) the combined voting power of the then-outstanding securities of theCompany entitled to vote generally in the election of directors (the “OutstandingCompany Voting Securities”); *provided, however*, that for purposes of this subsection(a), the following acquisitions shall not constitute a Change in Control: (i) anyacquisition directly from the Company (excluding an acquisition pursuant to theexercise, conversion or exchange of any security exercisable for, convertible into orexchangeable for common stock or voting securities of the Company, unless the Personexercising, converting or exchanging such security acquired such security directly fromthe Company or an underwriter or agent of the Company), (ii) any acquisition by theCompany, (iii) any acquisition by any employee benefit plan (or related trust) sponsoredor maintained by the Company or any corporation controlled by the Company, or (iv) anyacquisition by any corporation pursuant to a transaction which complies with clauses (i)and (ii) of subsection (c) of this Section 1.2; or(b) such time as the Continuing Directors (as defined below) do not constitute amajority of the Board (or, if applicable, the Board of Directors of a successorcorporation to the Company), where the term “Continuing Director” means at any date amember of the Board (i) who was a member of the Board on the date of the execution ofthis Agreement or (ii) who was nominated or elected subsequent to such date by at leasta majority of the directors who were Continuing Directors at the time of such nominationor election or whose election to the Board was recommended or endorsed by at least amajority of the directors who were Continuing Directors at the time of such nominationor election; *provided, however*, that there shall be excluded from this clause (ii) anyindividual whose initial assumption of office occurred as a result of an actual orthreatened election contest with respect to the election or removal of directors orother actual or threatened solicitation of proxies or consents, by or on behalf of aperson other than the Board; or
 
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(c) the consummation of a merger, consolidation, reorganization, recapitalizationor statutory share exchange involving the Company or a sale or other disposition of allor substantially all of the assets of the Company in one or a series of transactions (a“Business Combination”), unless, immediately following such Business Combination, eachof the following two conditions is satisfied: (i) all or substantially all of theindividuals and entities who were the beneficial owners of the Outstanding CompanyCommon Stock and Outstanding Company Voting Securities immediately prior to suchBusiness Combination beneficially own, directly or indirectly, more than 50% of thethen-outstanding shares of common stock and the combined voting power of thethen-outstanding securities entitled to vote generally in the election of directors,respectively, of the resulting or acquiring corporation in such Business Combination(which shall include, without limitation, a corporation which as a result of suchtransaction owns the Company or substantially all of the Company’s assets eitherdirectly or through one or more subsidiaries) (such resulting or acquiring corporationis referred to herein as the “Acquiring Corporation”) in substantially the sameproportions as their ownership, immediately prior to such Business Combination, of theOutstanding Company Common Stock and Outstanding Company Voting Securities,respectively; and (ii) no Person (excluding any employee benefit plan (or related trust)maintained or sponsored by the Company or by the Acquiring Corporation) beneficiallyowns, directly or indirectly, 30% or more of the then outstanding shares of common stockof the Acquiring Corporation, or of the combined voting power of the then-outstandingsecurities of such corporation entitled to vote generally in the election of directors(except to the extent that such ownership existed prior to the Business Combination); or(d) approval by the stockholders of the Company of a complete liquidation ordissolution of the Company.1.3 “Change in Control Date” means the first date during the Term (as defined inSection 2) on which a Change in Control occurs. Anything in this Agreement to the contrarynotwithstanding, if (a) a Change in Control occurs, (b) the Executive’s employment with theCompany is terminated prior to the date on which the Change in Control occurs, and (c) it isreasonably demonstrated by the Executive that such termination of employment (i) was at therequest of a third party who has taken steps reasonably calculated to effect a Change inControl or (ii) otherwise arose in connection with or in anticipation of a Change in Control,then for all purposes of this Agreement the “Change in Control Date” shall mean the dateimmediately prior to the date of such termination of employment.1.4 “Disability” means the Executive’s incapacity due to mental or physicalillness which is determined to be total and permanent by a physician selected by the Companyor its insurers and acceptable to the Executive or the Executive’s legal representative.Notwithstanding anything to the contrary herein, for purposes of this Agreement, eachreference to the Company’s termination of the Executive’s employment without Cause shall bedeemed to exclude the Company’s termination of the Executive’s employment by reason of his orher Disability.
 
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1.5 “Good Reason” means the occurrence, without the Executive’s written consent,of any of the events or circumstances set forth in clauses (a) through (d) below.(a) a material diminution in the Executive’s authority, duties or responsibilitiesas in effect immediately prior to the earliest to occur of (i) the Change in ControlDate, (ii) the date of the execution by the Company of the definitive written agreementor instrument providing for the Change in Control or (iii) the date of the adoption bythe Board of a resolution providing for a Change in Control (with the earliest to occurof such dates referred to herein as the “Measurement Date”);(b) a material diminution in the Executive’s base compensation as in effect on theMeasurement Date or as the same may be increased from time to time thereafter;(c) a change by the Company in the location at which the Executive performsExecutive’s principal duties for the Company to a new location that is both (i) outsidea radius of 35 miles from the Executive’s principal residence immediately prior to theMeasurement Date and (ii) more than 20 miles from the location at which the Executiveperformed Executive’s principal duties for the Company immediately prior to theMeasurement Date; or(d) any other action or inaction that constitutes a material breach by the Companyof this Agreement.2. Term of Agreement. This Agreement, and all rights and obligations of the partieshereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of(a) the expiration of the Term (as defined below) if a Change in Control has not occurred duringthe Term, (b) the termination of the Executive’s employment with the Company prior to theexpiration of the Term, other than by reason of a termination by the Company without Cause or atermination of the Executive’s employment by reason of a Disability prior to the occurrence of aChange in Control, (c) the fulfillment by the Company of all of its obligations under Section 3 ifthe Executive’s employment with the Company is terminated without Cause prior to a Change inControl, (d) the date 12 months after the Change in Control Date, if the Executive is stillemployed by the Company as of such later date, or (e) the fulfillment by the Company of all of itsobligations under Section 4 if the Executive’s employment with the Company terminates within 12months following the Change in Control Date. “Term” shall mean the period commencing as of theEffective Date and continuing in effect through December 31, 2015.
 
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3. Benefits Prior to a Change in Control.3.1 Termination of Employment Without Cause or Upon Death. Subject to the termsand conditions set forth in Section 5, in the event that the Executive’s employment isterminated because of the death of the Executive or by the Company without Cause at any timeprior to a Change in Control (such date of termination or death, the “Section 3 Date ofTermination”), the Executive (or Executive’s heirs) shall be entitled to the followingaggregate benefits:(a) The sum of (i) an amount equal to the average of the Executive’s bonuses earnedduring the last 3 full fiscal years (or such lesser number of years in which theExecutive earned a bonus), (“Average Bonus”) divided by 2, with the resulting amountmultiplied by a fraction, the numerator of which is the number of days preceding theSection 3 Date of Termination in the current bonus period and the denominator of whichis the total number of days in the current bonus period (the “Pro-Rata Bonus”), (ii) anyprior period bonus approved by the Board or the Compensation Committee of the Board butnot paid, (iii) the amount of any accrued base salary and/or vacation pay to the Section3 Date of Termination, in each case to the extent not previously paid (the sum of theamounts described in clauses (ii) and (iii) shall be herein referred to as “AccruedObligations”), payable in a lump sum in cash within 55 days following the Section 3 Dateof Termination; and(b) An amount, capped at 1.5 times the Executive’s base salary then in effect,equal to (i) Executive’s annual base salary then in effect multiplied by 0.67, plus (ii)one (1) month of the Executive’s monthly base salary then in effect for each whole yearof the Executive’s employment by the Company, as measured from the Section 3 Date ofTermination (the “Section 3 Termination Payment Period”), which amount shall be paid asa lump sum cash payment within 55 days following the Section 3 Date of Termination(subject to Section 3.2 below). Existing option, restricted stock and other equityawards will continue to be governed by the terms of their respective grants and planprovisions.For the avoidance of doubt, the bonus shall be determined by (a) including bonusesearned for the prior three fiscal years, regardless of whether such bonus amounts werepaid during such fiscal year or in the following fiscal year and (b) excluding any bonusamount paid during any of such three fiscal years that was earned for any fiscal yearprior to such three fiscal years. Notwithstanding Section 3.2(a) above, if theExecutive’s Section 3 Date of Termination occurs prior to the date upon which theExecutive has earned any bonus from the Company, the Executive’s “bonus earned” forpurposes of applying Section 3.2(a) shall be an amount equal to [$_____].3.2 Release. The payment to the Executive (or Executive’s heirs) of the amountsand benefits payable under Sections 3.1(a)(i) and 3.1(b) shall be contingent upon both (i) theexecution by the Executive (or Executive’s heirs) of a separation agreement and release in aform reasonably acceptable to the Company and substantially as set forth in ***Exhibit A***to thisAgreement (the “Executive Release”) and upon the Executive Release becoming effective andirrevocable in accordance with its terms within 55 days following the Section 3 Date ofTermination and (ii) agreement by the Executive to standard confidentiality obligations, anon-solicitation of Company customers for six-months following the Section 3 Date ofTermination and a non-solicitation of Company employees for twelve-months following theSection 3 Date of Termination, provided that the Executive signs such agreement by the55th day following his or her Section 3 Date of Termination. Executive will begiven a 21 day period to review and consider the release (such period may be extended to 45days if required under applicable law) and the Executive may revoke therelease for a period of 7 days, during which time the release shall not become effectiveor enforceable until the revocation period has expired.
 
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3.3 Sole Remedy. The payments under this Section 3 constitute the sole remedy ofthe Executive as a result of the circumstances set forth in this Section 3.4. Benefits after a Change in Control.4.1 Termination of Employment.(a) If the Change in Control Date occurs during the Term, any termination of theExecutive’s employment by the Company or by the Executive within 12 months following theChange in Control Date or termination due to the Executive’s death within 12 monthsfollowing the Change in Control Date, shall be communicated by a written notice to theother party hereto (the “Notice of Termination”), given in accordance with Section 8.Any Notice of Termination shall: (i) indicate the specific termination provision (ifany) of this Agreement relied upon by the party giving such notice, (ii) to the extentapplicable, set forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of the Executive’s employment under the provision soindicated and (iii) specify the Date of Termination (as defined below). The effectivedate of an employment termination (the “Date of Termination”) shall be (I) the close ofbusiness on the date specified in the Notice of Termination (which date may not be morethan 45 days after the date of delivery of such Notice of Termination) or (II) the dateof the Executive’s death.(b) The failure by the Executive or the Company to set forth in the Notice ofTermination any fact or circumstance which contributes to a showing of Good Reason orCause shall not waive any right of the Executive or the Company, respectively, hereunderor preclude the Executive or the Company, respectively, from asserting any such fact orcircumstance in enforcing the Executive’s or the Company’s rights hereunder.(c) Any Notice of Termination for Cause given by the Company must be given within90 days of the occurrence of the event(s) or circumstance(s) which constitute(s) Cause.Prior to any Notice of Termination for Cause being given (and prior to any terminationfor Cause being effective), the Executive shall be entitled to a hearing before theBoard at which the Executive may, at the Executive’s election, be represented by counseland at which Executive shall have a reasonable opportunity to be heard. Such hearingshall be held on not less than 15 days prior written notice to the Executive stating theBoard’s intention to terminate the Executive for Cause and stating in detail theparticular event(s) or circumstance(s) which the Board believes constitutes Cause fortermination.(d) Any Notice of Termination for Good Reason given by the Executive must be givenwithin 90 days of the occurrence of the event(s) or circumstance(s) that constitute(s)Good Reason. Notwithstanding the foregoing, such occurrence shall not be deemed toconstitute Good Reason unless (i) within 30 daysof the Company’s receipt of the Notice of Termination, such event or circumstancehas not been fully corrected and the Executive has not been reasonably compensated forany losses or damages resulting therefrom and (ii) the Executive’s Date of Terminationoccurs within two years following the Company’s receipt of the Notice of Termination.
 
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4.2 Benefits to Executive.4.2.1. Stock Acceleration. For each equity award (including optionsand other awards) granted to the Executive prior to the Effective Date, if the Change inControl Date occurs during the Term, then, effective upon the Change in Control Date, (a)each outstanding option to purchase shares of Common Stock of the Company held by theExecutive (or Executive’s heirs) shall become immediately exercisable in full, (b) eachoutstanding restricted stock award (“RS”) or restricted stock unit (“RSU”) shall be deemedto be fully vested and, for RSUs, the shares of Company Stock will be delivered upon vestingand (c) notwithstanding any provision in any applicable option agreement to the contrary,each such option shall continue to be exercisable by the Executive (to the extent suchoption was exercisable on the Date of Termination) until the earlier of (i) a period of sixmonths following the Date of Termination and (ii) the original expiration date of suchoption.For each equity award (including options and other awards) granted to the Executiveafter the Effective Date and prior to the Change in Control Date, if the Change in ControlDate occurs during the Term and the Date of Termination occurs within 12 months followingthe Change in Control Date due to death, a termination without Cause or a termination forGood Reason, then, effective upon the Date of Termination, (a) each outstanding option topurchase shares of Common Stock of the Company held by the Executive (or Executive’s heirs)shall become immediately exercisable in full, (b) each outstanding restricted stock award orRSU shall be deemed to be fully vested and, for RSUs, the shares of Company Stock will bedelivered upon vesting and (c) notwithstanding any provision in any applicable optionagreement to the contrary, each such option shall continue to be exercisable by theExecutive (to the extent such option was exercisable on the Date of Termination) until theearlier of (i) a period of twelve months following the Date of Termination and (ii) theoriginal expiration date of such option.
 
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4.2.2 Compensation. If the Change in Control Date occurs during the Term andthe Executive’s employment with the Company terminates within 12 months following the Changein Control Date, the Executive shall be entitled to the following additional benefits:(a) Termination Upon Death, Without Cause or for Good Reason. Subject tothe terms and conditions set forth in Sections 4.4 and 5, if the Executive’s employmentwith the Company is terminated (i) because of the death of the Executive or (ii) by theCompany (other than for Cause or by reason of the Executive’s Disability) or by theExecutive for Good Reason in each case within 12 months following the Change in ControlDate, then the Executive shall be entitled toa lump sum payment in cash, payable within 55 days following the Date ofTermination, of the aggregate of the following amounts:(1) the Accrued Obligations;(2) an amount equal to 1.5 times the Executive’s annual base salary then in effect;(3) Average Bonus; and(4) a taxable lump-sum cash payment equal to the Executive’s aggregate premiums to continuehis or her existing group health coverage (medical, dental, and vision) in effect as of the Dateof Termination pursuant to 29 U.S.C. §§ 1161-1169 (“COBRA”) for a period of 12 months (whichpayment shall be made if the Executive elects COBRA continuation coverage within 55 days followingthe Date of Termination.).1(b) Termination upon Disability. Subject to the terms and conditions setforth in Sections 4.4 and 5, if the Executive’s employment with the Company isterminated by reason of the Executive’s Disability, then the Company shall pay theExecutive in a lump sum in cash within 55 days following the Date of Termination, theAccrued Obligations and the Pro-Rata Bonus; provided, however, that the Pro Rata Bonusshall be paid to the Executive no later than March 15th of the calendar yearimmediately following the calendar year in which the Executive suffers such Disabilityor the Executive shall thereafter no longer be eligible to receive such a bonus.4.3 Taxes. Notwithstanding any provision of this Agreement to the contrary, ifany payment or benefit to be paid or provided hereunder would be an “Excess ParachutePayment,” within the meaning of Section 280G of the Code, or any successor provision thereto,but for the application of this sentence, then the payments and benefits to be paid orprovided hereunder shall be reduced to the minimum extent necessary (but in no event to lessthan zero) so that no portion of any such payment or benefit, as so reduced, constitutes anExcess Parachute Payment; provided, however, that the foregoing reduction shall be made onlyif and to the extent that such reduction would result in an increase in the aggregatepayments and benefits to be provided (i.e. a “best results provision”) determined on anafter-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of theInternal Revenue Code, or any successor provision thereto, any tax imposed by any comparableprovision of state law, and any applicable federal, state and local income taxes). Thedetermination of whether any reduction in such payments or benefits to be provided hereunderis required pursuant to the preceding sentence shall be made by the Company’s independentaccountants at the expense of the Company. The fact that Executive’s right to payments orbenefits may be reduced by reason of thelimitations contained in this Section shall not of itself limit or otherwise affect any other rights of Executive under this Agreement. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Section then the payments shall be reduced or eliminated in the following order: (W) any cash payments, (X) any taxable benefits, (Y) any nontaxable benefits,and (Z) any vesting of equity awards, in each case in reverse order beginning with payments orbenefits that are to be paid the farthest in time from the date that triggers the applicability of the excise tax.    1 If the Company is not reasonably able to provide suchamount (including by reason of a determination by the Company’s outside counselthat it cannot pay such amount without violating Section 2716 of the PublicHealth Service Act), the Company shall provide substantially equivalent healthcoverage under other sources or will reimburse the Executive for premiums (inexcess of the Executive’s cost described above) incurred by the Executive toobtain his or her own such coverage.
 
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4.4 Release. The payment to the Executive (or the Executive’s heirs) of theamounts and benefits payable under Section 4.2.2 shall be contingent on both (i) the executionby the Executive (or the Executive’s heirs) of the Executive Release and upon the ExecutiveRelease becoming effective in accordance with its terms within 55 days following the Date ofTermination and (ii) agreement by the Executive to standard confidentiality, anon-solicitation of Company customers for six-months following the Change in Control and anon-solicitation of Company employees for twelve months following the Change in Control,provided that the Executive signs such agreement by the 55th day following his orher Date of Termination. Executive will be given a 21 day period to review and consider therelease (such period may be extended to 45 days if required under applicable law) and theExecutive may revoke the release for a period of 7 days, during which time the release shallnot become effective or enforceable until the revocation period has expired.4.5 Sole Remedy. The payments under this Section 4 constitute the sole remedyof the Executive in the circumstances set forth in this Section 4.5. Payments Subject to Section 409A. Subject to the provisions in this Section 5, anyseverance payments or benefits under this Agreement shall begin only upon the date of theExecutive’s “separation from service” (determined as set forth below) which occurs on or after theSection 3 Date of Termination or the Date of Termination, as applicable. The following rules shallapply with respect to distribution of the payments and benefits, if any, to be provided to theExecutive under this Agreement.5.1 If, as of the date of the Executive’s “separation from service” from the Company,the Executive is not a “specified employee” (within the meaning of Section 409A), thenseverance payments and benefits shall be made on the dates and terms set forth in thisAgreement.5.2 If, as of the date of the Executive’s “separation from service” from the Company,the Executive is a “specified employee” (within the meaning of Section 409A), then:5.2.1. Each severance payment and benefit due under this Agreement that, in accordance withthe dates and terms set forth herein, will in all circumstances, regardless of when the separationfrom service occurs, be paid within the short-term deferral period (as defined in Section 409A)shall be treated as a short-term deferral within the meaning of Treasury Regulation Section1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and
 
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5.2.2. Each severance payment and benefit due under this Agreement that is not described inSection 5.2.1 above and that would, absent this subsection, be paid within the six-month periodfollowing the Executive’s “separation from service” from the Company shall not be paid until thedate that is six months and one day after such separation from service (or, if earlier, theExecutive’s death), with any such payments and benefits that are required to be delayed beingaccumulated during the six-month period and paid in a lump sum on the date that is six months andone day following the Executive’s separation from service; provided, however, thatthe preceding provisions of this sentence shall not apply to any severance payments and benefits ifand to the maximum extent that any such payment or benefit is deemed to be paid under a separationpay plan that does not provide for a deferral of compensation by reason of the application ofTreasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon an involuntary separationfrom service).5.3 The determination of whether and when the Executive’s separation from service fromthe Company has occurred shall be made in a manner consistent with, and based on thepresumptions set forth in, Treasury Regulation Section 1.409A-1(h).5.4 All reimbursements and in-kind benefits provided under this Agreement shall be madeor provided in accordance with the requirements of Section 409A to the extent that suchreimbursements or in-kind benefits are subject to Section 409A, including, where applicable,the requirements that (i) any reimbursement is for expenses incurred during the Executive’slifetime (or during a shorter period of time specified in this Agreement), (ii) the amount ofexpenses eligible for reimbursement during a calendar year may not affect the expenseseligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligibleexpense will be made on or before the last day of the calendar year following the year inwhich the expense is incurred and (iv) the right to reimbursement is not subject to set offor liquidation or exchange for any other benefit.5.5 Notwithstanding anything herein to the contrary, the Company shall have no liabilityto the Executive or to any other person if the payments and benefits provided in thisAgreement that are intended to be exempt from or compliant with Section 409A are not soexempt or compliant.6. Disputes.6.1 Settlement of Disputes. All claims by the Executive for benefits underSections 3 and 4 of this Agreement shall be directed to and determined by the Board and shallbe in writing. Any denial by the Board of a claim for benefits under this Agreement shall bedelivered to the Executive in writing and shall set forth the specific reasons for the denialand the specific provisions of this Agreement relied upon. The Board shall afford areasonable opportunity to the Executive for a review of the decision denying a claim.6.2 Expenses. The Company agrees to pay as incurred, to the full extentpermitted by law, all legal, accounting and other fees and expenses which the Executive mayreasonably incur as a result of any claim or contest by the Company, the Executive or othersregarding the validity or enforceability of, or liability under, Sections 3 and 4 of thisAgreement or any guarantee of performance thereof (including as a result of any contestby the Executive regarding the amount of any payment or benefits pursuant to thisAgreement); *provided that*Executive prevails in the outcome of such claim or contest.
 
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6.3 Compensation During a Dispute. Subject to any limitations under Section409A, if the Change in Control Date occurs during the Term and the Executive’s employmentwith the Company terminates within 12 months following the Change in Control Date, and theright of the Executive to receive benefits under Section 4 (or the amount or nature of thebenefits to which Executive is entitled to receive) are the subject of a dispute between theCompany and the Executive, the Company shall continue (a) to pay Executive, the Executive’sbase salary in effect as of the Measurement Date and (b) to provide benefits to the Executiveand the Executive’s family at least equal to those which would have been provided to them, ifthe Executive’s employment had not been terminated, in accordance with the applicable BenefitPlans in effect on the Measurement Date, until such dispute is resolved either by mutualwritten agreement of the parties or by final adjudication. Following the resolution of suchdispute, the sum of the payments made to the Executive under clause (a) of this Section 6.3shall be deducted from any cash payment which the Executive is entitled to receive pursuantto Section 4, if any; and if such sum exceeds the amount of the cash payment which theExecutive is entitled to receive pursuant to Section 4, if any, the excess of such sum overthe amount of such payment shall be repaid (without interest) by the Executive to the Companywithin 60 days of the resolution of such dispute.7. Successors.7.1 Successor to Company. The Company shall require any successor (whetherdirect or indirect, by purchase, merger, consolidation or otherwise) to all or substantiallyall of the business or assets of the Company expressly to assume and agree to perform thisAgreement to the same extent that the Company would be required to perform it if no suchsuccession had taken place, *provided that*: (i) nothing in this Agreement shall oblige anysuccessor to pay any further sums to the Executive in the event that the Company hasfulfilled its obligations to make payments to the Executive and/or the Agreement expires dueto any other term set forth in Section 2 above; and (ii) the successor shall not be entitledto ignore the occurrence of a Change in Control in order to avoid any obligations under thisAgreement. Failure of the Company to obtain an assumption of this Agreement at or prior tothe effectiveness of any succession shall be a breach of this Agreement and shall constituteGood Reason if the Executive elects to terminate employment. As used in this Agreement,“Company” shall mean the Company as defined above and any successor to its business or assetsas aforesaid which assumes and agrees to perform this Agreement, by operation of law orotherwise.7.2 Successor to Executive. This Agreement shall inure to the benefit of and beenforceable by the Executive’s personal or legal representatives, executors, administrators,successors, heirs, distributees, devisees and legatees. If the Executive should die whileany amount would still be payable to the Executive or Executive’s family hereunder if theExecutive had continued to live, all such amounts, unless otherwise provided herein, shall bepaid in accordance with the terms of this Agreement to the executors, personalrepresentatives or administrators of the Executive’s estate.
 
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8. Notice. All notices, instructions and other communications given hereunder or inconnection herewith shall be in writing. Any such notice, instruction or communication shall besent either (i) by registered or certified mail, return receipt requested, postage prepaid, or (ii)prepaid via a reputable nationwide overnight courier service, in each case addressed to theCompany, at 2584 Junction Avenue, San Jose, CA 95134, Attn: General Counsel, and to the Executiveat the Executive’s address indicated on the signature page of this Agreement (or to such otheraddress as either the Company or the Executive may have furnished to the other in writing inaccordance herewith). Any such notice, instruction or communication shall be deemed to have beendelivered five business days after it is sent by registered or certified mail, return receiptrequested, postage prepaid, or one business day after it is sent via a reputable nationwideovernight courier service. Either party may give any notice, instruction or other communicationhereunder using any other means, but no such notice, instruction or other communication shall bedeemed to have been duly delivered unless and until it actually is received by the party for whomit is intended.9. Miscellaneous.9.1 Employment by Subsidiary. For purposes of this Agreement, the Executive’semployment with the Company shall not be deemed to have terminated solely as a result of theExecutive continuing to be employed by a wholly-owned subsidiary of the Company.9.2 Severability. The invalidity or unenforceability of any provision of thisAgreement shall not affect the validity or enforceability of any other provision of thisAgreement, which shall remain in full force and effect.9.3 Injunctive Relief. The Company and the Executive agree that any breach ofthis Agreement by the Company is likely to cause the Executive substantial and irrevocabledamage and therefore, in the event of any such breach, in addition to such other remedieswhich may be available, the Executive shall have the right to specific performance andinjunctive relief.9.4 Exclusive Severance Benefits. The making of the payments and the provisionof the benefits by the Company to the Executive under this Agreement shall constitute theentire obligation of the Company to the Executive as a result of the termination ofExecutive’s employment, and the Executive shall not be entitled to additional payments orbenefits as a result of such termination of employment under any other plan, program,policy, practice, contract or agreement of the Company or its subsidiaries.9.5 Mitigation. The Executive shall not be required to mitigate the amount ofany payment or benefits provided for in Sections 3.1 and 4.2.2 by seeking other employmentor otherwise. Further, the amount of any payment or benefits provided for in this Agreementshall not be reduced by any compensation earned by the Executive as a result of employmentby another employer, by retirement benefits, by offset against any amount claimed to be owedby the Executive to the Company or otherwise.
 
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9.6 Not an Employment Contract. The Executive acknowledges that this Agreementdoes not constitute a contract of employment or impose on the Company any obligation toretain the Executive as an employee and that this Agreement does not prevent the Executivefrom terminating employment at any time. If the Executive’s employment with the Companyterminates for any reason and subsequently a Change in Control shall occur, the Executiveshall not be entitled to any benefits hereunder except as otherwise provided pursuant toSection 3 or 4.9.7 Governing Law. The validity, interpretation, construction and performanceof this Agreement shall be governed by the internal laws of the State of Delaware, withoutregard to conflicts of law principles.9.8 Waivers. No waiver by the Executive at any time of any breach of, orcompliance with, any provision of this Agreement to be performed by the Company shall bedeemed a waiver of that or any other provision at any subsequent time.9.9 Counterparts. This Agreement may be executed in counterparts, each ofwhich shall be deemed to be an original but both of which together shall constitute one andthe same instrument.9.10 Tax Withholding. Any payments provided for hereunder shall be paid net ofany applicable tax withholding required under federal, state or local law.9.11 Entire Agreement. This Agreement sets forth the entire agreement of theparties hereto in respect of the subject matter contained herein and supersedes all prioragreements, promises, covenants, arrangements, communications, representations orwarranties, whether oral or written, by any officer, employee or representative of any partyhereto in respect of the subject matter contained herein; and any prior agreement of theparties hereto in respect of the subject matter contained herein is hereby terminated andcancelled.9.12 Amendments. This Agreement may be amended or modified only by a writteninstrument executed by both the Company and the Executive.9.13 Executive’s Acknowledgements. The Executive acknowledges that Executive:(a) has read this Agreement; (b) has been represented in the preparation, negotiation, andexecution of this Agreement by legal counsel of the Executive’s own choice or hasvoluntarily declined to seek such counsel; and (c) understands the terms and consequences ofthis Agreement; and (d) understands that by executing this Agreement, the Employee foreverwaives and forfeits all rights under any prior agreements relating to the subject matterherein.
 
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and yearfirst set forth above. **Oclaro, Inc.** By: Title:       Executive          [Insert Name]         Address:    [Insert Address]  
 
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**Exhibit A****Form of Executive Release Agreement**This Release Agreement (the “Agreement”) is between Oclaro, Inc. (“Company”) and _____ (“Executive”).**Recital** The Company and Executive have entered into an Executive Severance and RetentionAgreement dated _____, 20_____ (“ESRA”), providing for the execution of this release as acondition to receipt of benefits under the ESRA.1. Consideration.a. The Recital set forth above is incorporated herein by reference as if fully set forth. Allcapitalized terms used in this Agreement have the same meaning as those contained in the ERSA,except where expressly defined otherwise.b. Executive expressly acknowledges and agrees that as of the date this Agreement is signedand except as otherwise provided in subparagraph 1(b) above, Executive has received allcompensation Executive has earned while employed by the Company, save and except for base salarywhich has accrued since Executive’s last paycheck from the Company. Executive further acknowledgesand agrees that as of the date this Agreement is signed, Executive has submitted for reimbursementall claims which he has for reimbursement of expenses Executive has incurred in connection with theperformance of Executive’s duties for the Company, and that Executive has no dispute with theCompany pertaining to any expense reports and reimbursements submitted to or received from theCompany.
 
 

 
2. Release. As of the date Executive signs this Agreement, Executive waives allclaims Executive might have against the Company (or any person or entity that could be made liablethrough the Company, including such persons as officers, directors, partners, members, managers,employees, representatives, agents, assigns, investors, stockholders, insurers, purchasers,successors, assigns, and others) arising out of or relating in any manner to Executive’s prior orcurrent relationship, or change of relationship, with the Company, whether or not Executive’sclaims have matured and whether or not Executive is aware of such claims. As used throughout thisAgreement, “claims” means and includes all claims for breach of contract, fraud, discrimination onany prohibited basis (including, but not limited to, race, color, ancestry, national origin,religion, disability, age, sex, sexual orientation, gender identity, medical condition, maritalstatus, or veteran status), breach of the covenant of good faith and fair dealing, violation of anystatute, defamation, breach of any benefit plan provision, breach of any California Labor Codeprovision, breach of any Business & Professions Code provision, breach of any securities laws orregulations, breach of any Corporations Code provision, interference with contract, interferencewith economic advantage, violation of ERISA, violation of any wage and hour laws (including anyapplicable wage orders and regulations) and any other claim arising out of or relating in anymanner to the parties’ former or current relationship, or change of thatrelationship. Executive specifically waives the provisions of Civil Code section 1542 whichprovides:A general release does not extend to claims which the creditor doesnot know or suspect to exist in his or her favor at the time ofexecuting the release, which if known by him or her must havematerially affected his or her settlement with the debtor.The Company and Executive agree that this release does not apply to claims which cannot be waivedas a matter of law or public policy (including, by way of example, claims for unemploymentinsurance benefits, or claims arising under the Workers Compensation Act). In addition to theforegoing, Executive expressly represents and warrants that Executive has not and will not assignany claim released in this Agreement to any other person or entity. Executive will indemnify anddefend the Company for all liabilities (including costs, attorneys fees, damages, settlements,compromises, judgments, penalties, interest, and any other sums) it incurs arising in whole or partfrom Executive’s untrue representation and warranty.*[Remainder of Page Intentionally Blank]*
 
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3. Miscellaneous. This Agreement is the complete agreement between the Company andExecutive concerning the subject matters discussed herein, and supersedes all previous discussions,understandings, and agreements between them concerning said matters, except as otherwise expresslystated in this Agreement. This Agreement is governed by California law (except to the extent itsconflict of laws principles would apply the law of a different jurisdiction), is entered into andperformed entirely in Santa Clara County, San Jose, California. If any provision of this is foundinvalid by any court having jurisdiction, the remainder of this Agreement shall be fully valid andenforceable. Executive and the Company understand this is a binding, legal agreement. ThisAgreement is binding on the parties’ respective heirs, successors, assigns, and representatives.         “Executive”         DATED:                                                                         Signature                Print Name           “Company”           **Oclaro, Inc.**         DATED:                                                             By:         Signature              Print Name, Title  
 
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