**Exhibit 10.2**

 

**CUBICCORPORATION**

 

**TRANSITIONPROTECTION PLAN**

 

**SECTION 1.**   INTRODUCTION.

 

The Cubic Corporation Transition Protection Plan(the ***“Plan”***) is hereby establishedeffective November 29, 2005 (the***“Effective Date”***).

 

The Company considers it essential to thebest interests of the Company and its shareholders to foster the continuousemployment of the Company’s key management personnel.  The Board of Directors of the Company (the ***“Board”***)  recognizes that the possibility of a Changein Control of the Company may occur and the uncertainty and questions that thispossibility may raise among management could result in the departure of keyexecutives,  the distraction of keyexecutives from the management of the business, or the inability to hire newkey executives, all to the detriment of the Company and its shareholders.

 

The Board has carefully considered the reportof the Executive Compensation Committee and its independent advisors and hasevaluated available alternative courses of action, including that of continuingthe status quo.  After discussion, debateand evaluation, the Board has unanimously decided to adopt the Plan toreinforce and encourage the continued dedication of key executives to theirduties without the distraction arising from the possibility of a Change inControl of the Company and to provide such key executives with the benefitsstated herein that ensure that the expectations of the executives will besatisfied, and that are also competitive with those of similar companies.

 

The Plan will provide for the payment ofseverance benefits to certain eligible employees of the Company in the eventthat such employees are subject to qualifying employment terminations inconnection with a Change in Control.

 

This Plan shall supersede any severancebenefit plan, policy or practice previously maintained by the Company, otherthan an individually negotiated contract or agreement with the Company relatingto severance or change in control benefits that is in effect on an employee’stermination date, in which case such employee’s severance benefit, if any,shall be governed by the terms of such individually negotiated employmentcontract or agreement and shall be governed by this Plan only to the extentthat the reduction pursuant to Section 7(b) below does not entirelyeliminate benefits under this Plan. Notwithstanding the foregoing, this Planshall not supersede, but rather shall supplement the enhanced severancebenefits (but not the Health Care Benefits) contained in the Company’sSeverance Policy in effect as of the Effective Time.  This document also is the Summary PlanDescription for the Plan.

 

**SECTION 2.**   DEFINITIONS.

 

For purposes of the Plan, the following termsare defined as follows:

 

**(a)****           *“Affiliate”***means any company controlled by, controllingor under common control with the Company.

 

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**(b)****           *“Base Salary”*** means, with respect to a Participant, theaverage of the Participant’s annual base pay (excluding incentive pay, premiumpay, commissions, overtime, bonuses and other forms of variable compensation)paid or payable for the five fiscal years (or such annualized shorter period asthe Participant has been employed by the Company) immediately prior to theChange in Control or immediately prior to the Participant’s termination ofemployment, whichever is greater,****withoutconsideration of any reduction constituting a Constructive Termination.

 

**(c)****           *“Average Bonus”***means, with respect to aParticipant,  an amount equal to theaverage of the annual cash and long-term bonuses  (excluding Base Salary and excluding anycommissions, expatriate premiums, fringe benefits (including without limitationcar allowances), option grants, equity awards, employee benefits and othersimilar items of compensation) paid or payable by the Company to the Participantfor the five fiscal years (or such annualized shorter period as the Participanthas been employed by the Company) immediately prior to the Change in Control orimmediately prior to the Participant’s termination of employment, whichever isgreater.

 

**(d)****           *“Change in Control”*** shall be deemed to occur on thehappening of any of the following events:

 

**(i)****           **Anyacquisition of beneficial ownership (as defined in the Securities Exchange Actof 1934, as amended (the ***“Exchange Act”***))as defined in Rule 13d-3 of the Exchange Act of such number of shares ofthe Company’s equity securities by any individual, entity or group (within themeaning of Section 13(d)(3) of the Exchange Act) (a ***“Person”***)  (other than Walter J. Zable or a trustestablished for himself, his spouse or issue) which enables such Person toelect a majority of the Company’s Board by cumulative voting, assuming 90% ofoutstanding shares vote;

 

**(ii)****          **Anysale of a Substantial Portion of the Property (as defined herein) of theCompany.

 

**(iii)****        **Asto an Participant who is an employee of a Subsidiary, any sale of a SubstantialPortion of the Property or the sale or issuance of a majority of the stock ofsuch Subsidiary by the Company to any party other than an Affiliate of theCompany;

 

**(iv)****         **Approvalby the stockholders of the Company of a complete liquidation or dissolution ofthe Company; or

 

**(v)****           **Theconsummation by the Company, directly or indirectly, in one or more steps, of amerger, consolidation, reorganization, or business combination or any act orevent which results in a majority of the Company’s Board as existingimmediately prior to such acts or events not continuing to serve as such.

 

**(e)****           *“Code”***means the Internal Revenue Code of 1986, asamended.

 

**(f)****            *“Company”*** means Cubic Corporation and its Subsidiaries or,following a Change in Control, the surviving entity resulting from suchtransaction.

 

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**(g)****           *“Constructive Termination”*** means a voluntary terminationof employment by a Participant after one of the following is undertaken withoutthe Participant’s express written consent:

 

**(i)****           **asubstantial reduction in the nature or scope of the Participant’s authority, duties,function or responsibilities (and not simply a change in title or reportingrelationships) in effect immediately prior to the effective date of the Changein Control; *provided, however,*that it shall not be a “Constructive Termination” if, following the effectivedate of the Change in Control, either (a) the Company is retained as aseparate legal entity or business unit and the Participant holds the sameposition in such legal entity or business unit as the Participant held beforesuch effective date, or (b) the Participant holds a position with authority,duties, function or****responsibilitiescomparable (though not necessarily identical, in view of the relative sizes ofthe Company and the entity involved in the Change in Control) to those of theParticipant prior to the effective date of the Change in Control;

 

**(ii)****          **a reduction in theParticipant’s base salary (except forsalary decreases generally applicable to the Company’s other similarly-situatedemployees);

 

**(iii)****        **an****elimination of the Participant’s opportunity to achievebonuses on a basis comparable to that provided prior to the Change in Control,or, if the Participant participates in the Company’s Management AnnualIncentive Plan or the Company’s Management 3-Year Incentive Plan, then anamendment to either such plan that reduces the percentage of average annualsalary used to determine Participant’s bonus under such plan or plans either:(x) by more than 50% or (y) by an amendment that is not generally applicable tothe Company’s other similarly-situated employees;

 

**(iv)****         **anincrease in the Participant’s one-way driving distance from the Participant’sprincipal personal residence to the principal office or business location atwhich the Participant is required to perform services of more than 20 miles,except for required travel for the Company’s business to an extentsubstantially consistent with Participant’s prior business travel obligations;

 

**(v)****           **amaterial breach by the Company of any provisions of the Plan or any enforceablewritten agreement between the Company and the Participant; ** **or

 

**(vi)****         **anyfailure by the Company to obtain assumption of the Plan by any successor orassign of the Company.

 

Notwithstandingthe foregoing, a voluntary termination shall not be deemed a ConstructiveTermination unless (x) the Participant provides the Company with written notice(the ***“Constructive Termination Notice”***)that the Participant believes that an event described in this Section 2(g) hasoccurred, (y) the Constructive Termination Notice is given within three (3) monthsof the date the event occurred, and (z) the Company does not rescind or curethe conduct giving rise to the event described in this Section 2(g) withinten (10) days of receipt by the Company of the Constructive TerminationNotice.

 

**(h)****          *****“Covered Termination”***means, with respect to a Participant, an Involuntary Termination Without Causeor a Constructive Termination, but only if such event occurs at any 

 

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time within three(3) months before or twenty-four (24)months following the effective date of a Change in Control. Terminationof employment of a Participant due to death or disability shall not constitutea Covered Termination unless a voluntary termination of employment by theParticipant immediately prior to the Participant’s death or disability wouldhave qualified as a Constructive Termination.

 

**(i)****            *“ERISA”***meansthe Employee Retirement Income Security Act of 1974, as amended.

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**(j)****            *“Involuntary Termination Without Cause”*** means, withrespect to a Participant, an involuntary termination of employment by theCompany other than for one of the following reasons:

 

**(i)****           **thewillful and continued failure of the Participant to perform substantially the Participant’sduties to the Company as those duties exist on the date of the Change inControl (or the date of termination, if earlier), other than any failureresulting from circumstances outside the Participant’s control, or fromincapacity of the Participant due to physical or mental illness or disability,or following the Participant’s delivery of a Constructive Termination Notice,after a written demand for substantial performance is delivered to theParticipant, which demand specifically identifies the manner in which theCompany believes that the Participant has not substantially performed theParticipant’s duties satisfactorily, and provided that the Company demonstratesthat such failure has a demonstrably harmful impact on the Company or itsreputation, and provided further that the Participant has been given a periodof at least 30 days to cure his failure in performance.  No act or failure to act shall be considered “willful”unless it is done, or omitted to be done, in bad faith or without reasonablebelief that the action was in the best interests of the Company or theSubsidiary; or

 

**(ii)****          **theParticipant’s gross negligence or breach of fiduciary duty to the Company involvingpersonal profit, personal dishonesty or recklessness, or the Participant’s materialbreach of any agreement with the Company, including a material violation of Companypolicies and procedures, *provided that*suchtermination of employment occur within 12 months following the Company’sdiscovery of such event;

 

**(iii)****        **theParticipant’s conviction (which has become final) or entry of a plea of guiltyor *nolo contendere* regarding an act thatwould be deemed a felony under California or Federal criminal statutes (or anycomparable criminal laws of any jurisdiction in which the Participant ispermanently employed by the Company or a Subsidiary) that has a demonstrablyharmful impact on the Company’s business or reputation, as determined in goodfaith by the Company’s Executive Compensation Committee, *providedthat*such termination occur within 12 months following the Company’sdiscovery of such event.

 

**(k)****           *“Participant”***means an individual who is employed by the Company as its Executive Chairman ofthe Board, Chief Executive Officer, as a senior vice president, or as a vicepresident (other than any individual who is a vice president on salescommission, as determined by the Company in its sole discretion) and such otherkey employees as may be recommended by the Company’s management and selected bythe Company’s Executive Compensation Committee; *provided, however*, that if the Company’s ExecutiveCompensation 

 

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Committee shallmake an affirmative determination that an employee serving in any such capacityshall not be a Participant, then such employee shall not be deemed aParticipant.  Any key employee who isselected by the Company’s Executive Compensation Committee to be a Participantshall become a Participant immediately following such action.  The determination of whether an employee is aParticipant shall be made by such Committee, in its sole discretion, and suchdetermination shall be binding and conclusive on all persons.

 

**(l)****            *“Participation Notice”***means the latest notice delivered by the Company to a Participant informing theemployee that the employee is a Participant in the Plan, substantially in theform of **Exhibit A** hereto.

 

**(m)****          *“Plan Administrator”***means the Board or any committee duly authorized by the Board to administer thePlan.  The Plan Administrator may, but isnot required to be, the Compensation Committee of the Board.  The Board may at any time administer thePlan, in whole or in part, notwithstanding that the Board has previouslyappointed a committee to act as the Plan Administrator.

 

**(n)****           *“Subsidiary”***or ***“Subsidiaries”***meansCubic Defense Applications, Inc., Cubic Transportation Systems, Inc.,Cubic Simulation Systems, Inc. and Cubic Applications, Inc. and anyother entity that is designated by the Board.

 

**(o)****           *“Substantial Portion of the Property”*** means the sale ofassets for an amount totaling at least 51% of the aggregate consolidated bookvalue of the assets of the Company or a Subsidiary as set forth on theconsolidated balance sheet of the Company or on the balance sheet of aSubsidiary for its most recent year end, as certified by its regularindependent certified public accountants.

 

**SECTION 3.**   ELIGIBILITY FOR BENEFITS.

 

**(a)****           GeneralRules.**  Subject to the provisions setforth in this Section and Section 6, in the event of a CoveredTermination, the Company will provide the severance benefits described in Section 4of the Plan to the affected Participant. Promptly upon an employee becoming a Participant, the Company shalldeliver to the Participant a Participation Notice.

 

**(b)****           Exceptionsto Benefit Entitlement.**  An employee,including an employee who otherwise is a Participant, will not receive benefitsunder the Plan (or will receive reduced benefits under the Plan) in thefollowing circumstances, as determined by the Company in its sole discretion:

 

**(i)****           **The employee has executed anindividually negotiated employment contract or agreement with the Companyrelating to severance or change in control benefits that is in effect on his orher termination date, in which case such employee’s severance benefit, if any,shall be governed by the terms of such individually negotiated employmentcontract or agreement and shall be governed by this Plan only to the extentthat the reduction pursuant to Section 6(b) below does not entirelyeliminate benefits under this Plan.

 

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**(ii)****          **Theemployee voluntarily terminates employment with the Company in order to acceptemployment with another entity that is controlled (directly or indirectly) bythe Company or is otherwise an affiliate of the Company.

 

**(iii)****        **Theemployee is offered immediate reemployment by a successor to the Company or bya purchaser of its assets, as the case may be, following a change in ownershipof the Company or a sale of all or substantially all the assets of a divisionor business unit of the Company.  Forpurposes of the foregoing, “immediate reemployment” means that the employee’semployment with the successor to the Company or the purchaser of its assets, asthe case may be, results in uninterrupted employment such that the employeedoes not suffer a lapse or reduction in pay or benefits (including coverageunder this Plan) as a result of the change in ownership of the Company or thesale of its assets.

 

**(iv)****         **Theemployee does not confirm in writing that he or she shall be subject to theCompany’s Confidentiality Agreement.

 

**(c)****           Terminationof Benefits.**  A Participant’s rightto receive the payment of benefits under this Plan shall terminate immediatelyif, at any time prior to or during the period for which the Participant isreceiving benefits hereunder, the Participant, without the prior writtenapproval of the Company:

 

**(i)****           **willfullybreaches a material provision of the Participant’s proprietary information orconfidentiality agreement with the Company, as referenced in Section 3(b)(iv);

 

**(ii)****          **owns,manages, operates, joins, controls or participates in the ownership,management, operation or control of, is employed by or connected in any mannerwith, any person, enterprise or entity which is engaged in any businesscompetitive with that of the Company; *provided,however,*that such restriction will not apply to any passiveinvestment representing an interest of less than five percent (5%) of anoutstanding class of publicly-traded securities of any corporation or otherentity or enterprise;

 

**(iii)****        **encouragesor solicits any of the Company’s then current employees to leave the Company’semploy for any reason or interferes in any other manner with employmentrelationships at the time existing between the Company and its then currentemployees; or

 

**(iv)****         **inducesany of the Company’s then current clients, customers, suppliers, vendors,distributors, licensors, licensees or other third party to terminate theirexisting business relationship with the Company or interferes in any othermanner with any existing business relationship between the Company and any thencurrent client, customer, supplier, vendor, distributor, licensor, licensee orother third party.

 

If aParticipant is in doubt as to whether a proposed activity may be described in Section 3(c)(i) –(iv), then such Participant shall have the right to request an interpretationby the Company.  Such request shall bemade by giving notice to the Company. Unless notice that such activity is described in Section 3(c)(i)-(iv) isprovided to the Participant within 45 days after the date of such Participant’snotice, then such activity shall not be deemed to be described in this Section 3(c)(i)-(iv).

 

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**SECTION 4.**   AMOUNT OF BENEFITS.

 

**(a)****           CashSeverance Benefits.**  Each Participantwho incurs a Covered Termination shall be entitled to receive a cash severance benefit equal to the numberof months of Base Salary plus Average Bonus set forth in suchParticipant’s Participation Notice.  Anycash severance benefits provided under this Section 4(a) shall bepaid pursuant to the provisions of Section 5.

 

**(b)****           Accelerated Stock Award Vesting and ExtendedExercisability of Stock Options.** If a Participant incurs a Covered Termination, then effective as of thedate of the Participant’s Covered Termination (or, if such Covered Terminationoccurs prior to a Change in Control, then effective as of the date of suchChange in Control), (i) the vesting and exercisability of all outstandingoptions to purchase the Company’s common stock that are held by the Participanton such date shall be accelerated in full, and (ii) any reacquisition orrepurchase rights held by the Company in respect of common stock issuedpursuant to any other stock award granted to the Participant by the Companyshall lapse.

 

In addition, the post-termination ofemployment exercise period of any outstanding option held by the Participant onthe date of his or her Covered Termination shall be extended, if necessary,such that the post-termination of employment exercise period shall notterminate prior to the later of (i) the date twelve (12) months after theeffective date of the Covered Termination (or, if the stock option was held bythe individual at the time he or she first became a Participant in this Planand counsel for the Company has not advised the Company that such accelerationwould not cause such option to be treated as covered by Section 409A ofthe Code or would not cause the Participant to become subject to the immediatetaxation prior to the date of exercise, additional tax and interest under Section 409Aof the Code, then the later of the 15th day of the third monthfollowing the date at which, or December 31 of the calendar year in which,the stock option would otherwise have expired if the stock option had not beenextended pursuant to this Section 4(b), based on the terms of the stock optionat the original grant date) or (ii) the post-termination exercise periodprovided for in such option; *provided, however*,that such option shall not be exercisable after the expiration of its maximumterm.

 

**(c)****           ContinuedMedical Benefits**.  If a Participantincurs a Covered Termination and the Participant was enrolled in a health,dental, or vision****plan sponsored by the Companyimmediately prior to such Covered Termination, the Participant may be eligibleto continue coverage under such health, dental, or vision plan (or to convertto an individual policy), at the time of the Participant’s termination ofemployment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (***“COBRA”***).  The Company will notify the Participant ofany such right to continue such coverage at the time of termination pursuant toCOBRA.  No provision of this Plan willaffect the continuation coverage rules under COBRA, except that theCompany’s payment, if any, of applicable insurance premiums will be credited aspayment by the Participant for purposes of the Participant’s payment requiredunder COBRA.  Therefore, the periodduring which a Participant may elect to continue the Company’s health, dental,or vision plan coverage at his or her own expense under COBRA, the length oftime during which COBRA coverage will be made available to the Participant, andall other rights and obligations of the Participant under COBRA (except theobligation to pay insurance premiums that the Company pays, if any) will beapplied in the same manner that such rules would apply in the absence ofthis Plan.

 

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If aParticipant timely elects continued coverage under COBRA, the Company shall paythe full amount of the Participant’s COBRA premiums on behalf of theParticipant for the Participant’s continued coverage under the Company’s healthplans (including any dental care plans, but excluding any vision care plansmaintained by the Company), including coverage for the Participant’s eligibledependents, during the lesser of: (i) the number of months of Base Salaryand Average Bonus in respect of which the amount paid to the Participant under Section 4(a) wascalculated (the ***“Severance Period”***), or (ii) 18months; *provided, however,*thatno such premium payments shall be made following the Participant’s death or theeffective date of the Participant’s coverage by a health plan of a subsequentemployer, except as necessary to provide coverage under this Plan to theParticipant’s surviving spouse.  Each Participantshall be required to notify the Company immediately if the Participant becomescovered by a health plan of a subsequent employer.  Upon the conclusion of such period ofinsurance premium payments made by the Company, the Participant will be responsiblefor the entire payment of premiums required under COBRA for the duration of theCOBRA period.

 

For purposesof this Section 4(c), (i) references to COBRA shall be deemed torefer also to analogous provisions of state law and (ii) any applicableinsurance premiums that are paid by the Company shall not include any amountspayable by the Participant under an Code Section 125 health carereimbursement plan, which amounts, if any, are the sole responsibility of theParticipant.

 

**(d)****           OtherEmployee Benefits.**  During aParticipant’s Severance Period, the Participant shall not be entitled toreimbursement for fringe benefits other than as provided in this Plan, norshall the Participant be entitled to receive any payments or other compensationattributable to vacation periods that would have been earned had Participant’semployment continued during the Severance Period.  Executive’s participation in all tax-deferredor tax qualified retirement and cafeteria plans shall cease upon termination ofemployment.   All other employee benefits not described inthis Section 4 shall terminate as of the Participant’s termination date(except to the extent that a conversion privilege may be available thereunder).

 

**(e)****           OutplacementServices.**  Upon a CoveredTermination, the Company shall pay an appropriate executive out placementservice up to the amount listed in such Participant’s Participation Notice forits services rendered to the Participant.

 

**(f)****            MovingExpenses.**  If within 24 months priorto the Change in Control a Participant had relocated his personal residence atthe request of the Company, then upon such Participant’s Covered Terminationthe Company shall pay all costs and expenses of relocating the Participant, hisor her household goods and his or her family to a location of the Participant’schoice, provided that the cost of such relocation shall not exceed the cost torelocate to the city in which his or her immediately previous residence waslocated, and *provided further that* such costsand expenses would otherwise be deductible under Code Section 217.  If the Participant had purchased a residencewhen he or she relocated, the Company shall also reimburse the Participant forthe reasonable costs of sale of such new residence in accordance with theCompany’s relocation policies in existence immediately before the Change inControl.  All such amounts shall begrossed up for federal and state income taxes.

 

**(g)****           AdditionalBenefits. **Notwithstanding theforegoing, the Company may, in its sole discretion, provide benefits inaddition to those pursuant to Sections 4(a), 4(b), 4(c), 4(d), 

 

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4(e), and 4(f),to Participants or employees who are not Participants (***“Non-Participants”***)chosen by the Company, in its sole discretion; *providedthat* the Company shall communicate in writing on behalf of the Boardto such Participants or Non-Participants who become entitled to such benefits;and *provided further that* the provision ofany such benefits to a Participant or a Non-Participant shall in no wayobligate the Company to provide such benefits to any other Participant or toany other Non-Participant, even if similarly situated.  If benefits under the Plan are provided to aNon-Participant, references in the Plan to “Participant”(with the exception ofSections 4(a), 4(b), 4(c), 4(d), 4(e), and 4(f)) shall be deemed to refer tosuch Non- Participants.

 

**SECTION 5.**   TIME AND FORM OF SEVERANCE PAYMENTS.

 

**(a)****           GeneralRules.**  Subject to Section 5(b),any cash severance benefit provided under Section 4(a) shall be paidin installments pursuant to the Company’s regularly scheduled payroll periodscommencing as soon as practicable following the effective date of a Participant’sCovered Termination (or, if such Covered Termination occurs prior to a Changein Control, then commencing as soon as practicable following the effective dateof the Change in Control) and shall be subject to all applicable withholdingfor federal, state and local taxes.  Inthe event of a Participant’s death prior to receiving all installment paymentsof his or her cash severance benefit under Section 4(a), any remaininginstallment payments shall be made to the Participant’s estate on the samepayment schedule as would have occurred absent the Participant’sdeath.  In no event shall payment of anyPlan benefit be made prior to the effective date of the Participant’s CoveredTermination or prior to the effective date of the release described in Section 7(a).

 

**(b)****           Applicationof Section 409A. **In the eventthat any cash severance benefit provided under Section 4(a) orcontinued medical benefit under Section 4(c) shall fail to satisfythe distribution requirement of Section 409A(a)(2)(A) of the Code asa result of the application of Section 409A(a)(2)(B)(i) of the Code, thepayment of such benefit shall be accelerated to the minimum extent necessary sothat the benefit is not subject to the provisions of Section 409A(a)(1) ofthe Code.  (The payment schedule asrevised after the application of the preceding sentence shall be referred to asthe ***“Revised Payment Schedule.”***)  In the event the payment of benefits pursuantto the Revised Payment Schedule would be subject to Section 409A(a)(1) ofthe Code, the payment of such benefits shall not be paid pursuant to theRevised Payment Schedule and instead the payment of such benefits shall bedelayed to the minimum extent necessary so that such benefits are not subjectto the provisions of Section 409A(a)(1) of the Code.  The Board may attach conditions to or adjustthe amounts paid pursuant to this Section 5(b) to preserve, asclosely as possible, the economic consequences that would have applied in theabsence of this Section 5(b); *provided, however*,that no such condition or adjustment shall result in the payments being subjectto Section 409A(a)(1) of the Code.

 

**SECTION 6.**   LIMITATIONS ON BENEFITS.

 

**(a)****           Release.**  In order to be eligible to receive benefitsunder the Plan, a Participant also must execute a general waiver and release insubstantially the form attached hereto as Exhibit B and such release mustbecome effective in accordance with its terms. For purposes of the preceding sentence, with respect to any outstandingoption held by the Participant, the receipt of benefits shall be deemed to bethe exercise of such option pursuant to the extended exercisability of suchoption under Section 4(b), rather than the acceleration or extension ofsuch 

 

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option’sexercisability. The Company, in its sole discretion, may modify the form of therequired release to comply with applicable law and shall determine the form ofthe required release, which may be incorporated into a termination agreement orother agreement with the Participant.

 

**(b)****           CertainReductions.**  The Company, in its solediscretion, shall have the authority to reduce a Participant’s severancebenefits, in whole or in part, by any other severance benefits, pay in lieu ofnotice, or other similar benefits payable to the Participant by the Companythat become payable in connection with the Participant’s termination ofemployment pursuant to (i) any applicable legal requirement, including,without limitation, the Worker Adjustment and Retraining Notification Act (the ***“WARN Act”***), (ii) a writtenemployment or severance agreement with the Company, or (iii) any Companypolicy or practice providing for the Participant to remain on the payroll for alimited period of time after being given notice of the termination of theParticipant’s employment.  The benefitsprovided under this Plan are intended to satisfy, in whole or in part, any andall statutory obligations and other contractual obligations of the Company thatmay arise out of a Participant’s termination of employment, and the PlanAdministrator shall so construe and implement the terms of the Plan.  The Company’s decision to apply suchreductions to the severance benefits of one Participant and the amount of suchreductions shall in no way obligate the Company to apply the same reductions inthe same amounts to the severance benefits of any other Participant, even ifsimilarly situated.  In the Company’ssole discretion, such reductions may be applied on a retroactive basis, withseverance benefits previously paid being recharacterized as payments pursuantto the Company’s statutory or other contractual obligations.

 

**(c)****           Mitigation.**  Except as otherwise specifically providedherein, a Participant shall not be required to mitigate damages or the amountof any payment provided under this Plan by seeking other employment or otherwise,nor shall the amount of any payment provided for under this Plan be reduced byany compensation earned by a Participant as a result of employment by anotheremployer or any retirement benefits received by such Participant after the dateof the Participant’s termination of employment with the Company.

 

**(d)****           Non-Duplicationof Benefits.**  Except as otherwisespecifically provided for herein, no Participant is eligible to receivebenefits under this Plan or pursuant to other contractual obligations more thanone time.  This Plan is designed toprovide certain severance pay and change in control benefits to Participantspursuant to the terms and conditions set forth in this Plan.  The payments pursuant to this Plan are inaddition to, and not in lieu of, any unpaid salary, bonuses or benefits towhich a Participant may be entitled for the period ending with the Participant’sCovered Termination.

 

**(e)****           Indebtednessof Participants. **If a Participant isindebted to the Company on the effective date of his or her CoveredTermination, the Company reserves the right to offset any severance paymentsunder the Plan by the amount of such indebtedness.

 

**(f)****            ParachutePayments. ** If any payment or benefit (including paymentsor benefits pursuant to this Plan) that a Participant would receive inconnection with a Change in Control or otherwise (a “**Payment**”) (a) would constitute a “parachute payment”within the meaning of Section 280G of the Code, and (b) but for thissentence, would be subject to the excise tax imposed by Section 4999 ofthe Code (the “**Excise Tax**”), thenthe Company shall cause to be 

 

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determined,before any amount of the Payment is paid to such Participant, which of thefollowing two alternative forms of payment would maximize the Participant’safter-tax proceeds: (i) payment in full of the entire amount of thePayment including any amounts to be paid to the Participant pursuant to thisPlan (a “**Full Payment**”), or (ii) paymentof only a part of the Payment so that the Participant receive the largestpayment possible without the imposition of the Excise Tax (a “**Reduced Payment**”), whichever amount resultsin the Participant’s receipt, on an after-tax basis, of the greater amount ofthe Payment notwithstanding that all or some portion of the Payment may besubject to the Excise Tax.  For purposesof determining whether to make a Full Payment or a Reduced Payment, the Companyshall cause to be taken into account all applicable federal, state and localincome and employment taxes and the Excise Tax (all computed at the highestapplicable marginal rate, net of the maximum reduction in federal income taxeswhich could be obtained from a deduction of such state and local taxes).  If a Reduced Payment is made, (i) the Paymentshall be paid only to the extent permitted under the Reduced Paymentalternative, and the Participant shall have no rights to any additionalpayments and/or benefits constituting the Payment, and (ii) reduction inpayments and/or benefits shall occur in the following order unless theParticipant elects in writing a different order (*provided, however*, that such election shall be subject toCompany approval if made on or after the date on which the event that triggersthe Payment occurs): (1) reduction of cash payments; (2) cancellationof accelerated vesting of equity awards other than stock options; (3) cancellationof accelerated vesting of stock options; and (4) reduction of otherbenefits paid to the Participant.  In theevent that acceleration of compensation from the Participant’s equity awards isto be reduced, such acceleration of vesting shall be canceled in the reverseorder of the date of grant unless the Participant elects in writing a differentorder for cancellation.

 

Theindependent registered public accounting firm engaged by the Company forgeneral audit purposes as of the day prior to the effective date of the Changein Control shall make all determinations required to be made under thisSection.  If the independent registeredpublic accounting firm so engaged by the Company is serving as accountant orauditor for the individual, entity or group effecting the Change in Control,the Company shall appoint a nationally recognized independent registered publicaccounting firm to make the determinations required hereunder.  The Company shall bear all expenses withrespect to the determinations by such independent registered public accountingfirm required to be made hereunder.

 

Theindependent registered public accounting firm engaged to make thedeterminations hereunder shall provide its calculations, together with detailedsupporting documentation, to the Company and the Participant within fifteen(15) calendar days after the date on which the Participant’s right to a Paymentis triggered (if requested at that time by the Company or Executive) or suchother time as requested by the Company or the Participant.  If the independent registered publicaccounting firm determines that no Excise Tax is payable with respect to aPayment, either before or after the application of the Reduced Amount, it shallfurnish the Company and the Participant with an opinion reasonably acceptableto the Participant that no Excise Tax will be imposed with respect to suchPayment.  Any good faith determinationsof the accounting firm made hereunder shall be final, binding and conclusiveupon the Company and the Participant.

 

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**SECTION 7.**   RIGHT TO INTERPRET PLAN; AMENDMENT AND TERMINATION.

 

**(a)****           ExclusiveDiscretion.**  The Plan Administratorshall have the exclusive discretion and authority to establish rules, forms,and procedures for the administration of the Plan and to construe and interpretthe Plan and to decide any and all questions of fact, interpretation, definition,computation or administration arising in connection with the operation of thePlan, including, but not limited to, the eligibility to participate in the Planand amount of benefits paid under the Plan. The rules, interpretations, computations and other actions of the PlanAdministrator shall be binding and conclusive on all persons.

 

**(b)****           Amendmentor Termination.**  The term of thisPlan shall be the period commencing on the Effective Date and ending on December 31,2008, provided, however, that commencing on January 1, 2006, and on each January 1thereafter (a **“Renewal Date”**), the term of thisAgreement shall be extended so as to terminate three years from such RenewalDate if, and only if, at any time during the calendar year prior to the RenewalDate the Company’s Executive Compensation Committee (or its Board) resolves toextend the term for an additional year. Unless otherwise required by law, noapproval of the shareholders of the Company shall be required for any amendmentor termination including any amendment that increases the benefits providedunder any option or other stock award.

 

**(c)****          **TheCompany’s Executive Compensation Committee may amend the Plan to reduce thebenefits provided under Section 4 or may provide that a person who is aParticipant shall no longer be a Participant; *provided,however*, that if the Company’s Executive Compensation Committee eitheramends the Plan to reduce the benefits provided under Section 4 or makesan affirmative determination that an employee shall no longer be a Participant,then such action shall become first effective on the 3rd anniversaryof such determination; *provided that,*within30 days before or after such action, the Company gives the Participant noticeof such event.  The determination ofwhether to reduce the benefits provided in Section 4 or whether anemployee shall no longer be a Participant shall be made by the Company’sExecutive Compensation Committee, in its sole discretion, and suchdetermination shall be binding and conclusive on all persons.

 

**(d)****          **Regardlessof whether such action would be deemed to impair a Participant’s rights underthe Plan, the Company’s Executive Compensation Committee may amend the Plan inany way to comply with applicable legal requirements.  Except as expressly provided herein,  the Company’s Executive Compensation Committeemay amend the Plan at any time; *provided that*no such amendment may impair the rights of a Participant without suchParticipant’s consent.

 

**SECTION 8.**   NO IMPLIED EMPLOYMENT CONTRACT.

 

The Plan shall not be deemed (i) to giveany employee or other person any right to be retained in the employ of theCompany or (ii) to interfere with the right of the Company to dischargeany employee or other person at any time, with or without cause, which right ishereby reserved.

 

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**SECTION 9.**      LEGAL CONSTRUCTION.

 

This Plan shall be governed by and construedunder the laws of the State of California (without regard to principles ofconflict of laws), except to the extent preempted by ERISA.

 

**SECTION 10.**    CLAIMS,INQUIRIES AND APPEALS.

 

**(a)****           Applicationsfor Benefits and Inquiries.**  Anyapplication for benefits, inquiries about the Plan or inquiries about presentor future rights under the Plan must be submitted to the Plan Administrator inwriting by an applicant (or his or her authorized representative).  The Plan Administrator is:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333 Balboa Avenue

San Diego, California 92123

 

**(b)****           Denial ofClaims.**  In the event that anyapplication for benefits is denied in whole or in part, the Plan Administratormust provide the applicant with written or electronic notice of the denial ofthe application, and of the applicant’s right to review the denial.  Any electronic notice will comply with theregulations of the U.S. Department of Labor. The notice of denial will be set forth in a manner designed to beunderstood by the applicant and will include the following:

 

**(1)****          **thespecific reason or reasons for the denial;

 

**(2)****          **referencesto the specific Plan provisions upon which the denial is based;

 

**(3)****          **adescription of any additional information or material that the PlanAdministrator needs to complete the review and an explanation of why suchinformation or material is necessary; and

 

**(4)****          **anexplanation of the Plan’s review procedures and the time limits applicable tosuch procedures, including a statement of the applicant’s right to bring acivil action under Section 502(a) of ERISA following a denial onreview of the claim, as described in Section 10(d) below.

 

This notice of denial will be given to theapplicant within ninety (90) days after the Plan Administrator receives theapplication, unless special circumstances require an extension of time, inwhich case, the Plan Administrator has up to an additional ninety (90) days forprocessing the application.  If anextension of time for processing is required, written notice of the extensionwill be furnished to the applicant before the end of the initial ninety (90)day period.

 

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This notice of extension will describe thespecial circumstances necessitating the additional time and the date by whichthe Plan Administrator is to render its decision on the application.

 

**(c)****           Requestfor a Review.**  Any person (or thatperson’s authorized representative) for whom an application for benefits isdenied, in whole or in part, may appeal the denial by submitting a request fora review to the Plan Administrator within sixty (60) days after the applicationis denied.  A request for a review shallbe in writing and shall be addressed to:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333 Balboa Avenue

San Diego, California 92123

 

A request for review must set forth all ofthe grounds on which it is based, all facts in support of the request and anyother matters that the applicant feels are pertinent.  The applicant (or his or her representative)shall have the opportunity to submit (or the Plan Administrator may require theapplicant to submit) written comments, documents, records, and otherinformation relating to his or her claim. The applicant (or his or her representative) shall be provided, uponrequest and free of charge, reasonable access to, and copies of, all documents,records and other information relevant to his or her claim.  The review shall take into account allcomments, documents, records and other information submitted by the applicant(or his or her representative) relating to the claim, without regard to whethersuch information was submitted or considered in the initial benefitdetermination.

 

**(d)****           Decisionon Review.**  The Plan Administratorwill act on each request for review within sixty (60) days after receipt of therequest, unless special circumstances require an extension of time (not toexceed an additional sixty (60) days), for processing the request for areview.  If an extension for review isrequired, written notice of the extension will be furnished to the applicant withinthe initial sixty (60) day period.  Thisnotice of extension will describe the special circumstances necessitating theadditional time and the date by which the Plan Administrator is to render itsdecision on the review.  The PlanAdministrator will give prompt, written or electronic notice of its decision tothe applicant. Any electronic notice will comply with the regulations of theU.S. Department of Labor.  In the eventthat the Plan Administrator confirms the denial of the application for benefitsin whole or in part, the notice will set forth, in a manner calculated to beunderstood by the applicant, the following:

 

**(1)****          **thespecific reason or reasons for the denial;

 

**(2)****          **referencesto the specific Plan provisions upon which the denial is based;

 

**(3)****          **astatement that the applicant is entitled to receive, upon request and free ofcharge, reasonable access to, and copies of, all documents, records and otherinformation relevant to his or her claim; and

 

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**(4)****          **astatement of the applicant’s right to bring a civil action under Section 502(a) ofERISA.

 

**(e)****           Rules andProcedures.**  The Plan Administratorwill establish rules and procedures, consistent with the Plan and withERISA, as necessary and appropriate in carrying out its responsibilities inreviewing benefit claims.  The PlanAdministrator may require an applicant who wishes to submit additionalinformation in connection with an appeal from the denial of benefits to do soat the applicant’s own expense.

 

**(f)****           ****Exhaustion of Remedies.** No legal action for benefits under the Plan may be brought until theapplicant (i) has submitted a written application for benefits inaccordance with the procedures described by Section 10(a) above, (ii) hasbeen notified by the Plan Administrator that the application is denied, (iii) hasfiled a written request for a review of the application in accordance with theappeal procedure described in Section 10(c) above, and (iv) hasbeen notified that the Plan Administrator has denied the appeal.  Notwithstanding the foregoing, if the PlanAdministrator does not respond to an applicant’s claim or appeal within therelevant time limits specified in this Section 10, the applicant may proceeddirectly to arbitration pursuant to Section 11.

 

**SECTION 11.**    ARBITRATION

 

**(a)****          **Anyapplicant’s claim remaining unresolved after exhaustion of the procedures in Section 10(and to the extent permitted by law, any dispute concerning any breach orclaimed breach of duty regarding the Plan) shall be settled solely by bindingarbitration in San Diego, California, by a single arbitrator with at least 20years of employment law experience, in accordance with the Employment Claims Rules ofthe American Arbitration Association.  Nodepositions may be taken. The arbitrator, in reviewing the decision of the PlanAdministrator pursuant to Section 10, shall apply the standard of areviewing court under ERISA, namely that such decision shall be affirmed unlessthe arbitrator finds it to be arbitrary and capricious.  Judgment on any award rendered by thearbitrator may be entered in any court having jurisdiction thereof.  Each party to any dispute regarding the Planshall pay the fees and costs of presenting his, her or its case in arbitration.  All other costs of arbitration, including thecosts of any transcript of the proceedings, administrative fees, and thearbitrator’s fees shall be borne by the Company.

 

**(b)****          **Exceptas otherwise specifically provided in this Plan, the provisions of this Section 11shall be absolutely exclusive for any and all purposes and fully applicable toeach and every dispute regarding the Plan, including any claim which, ifpursued through any state or federal court or administrative proceeding, wouldarise at law, in equity or pursuant to statutory, regulatory or common lawrules, regardless of whether such claim would arise in contract, tort or underany other legal or equitable theory or basis. The arbitrator shall have jurisdiction and authority to award only Planbenefits and prejudgment interest; and apart from such benefits and interest,the arbitrator shall not have any authority or jurisdiction to make any awardof any kind including, without limitation, compensatory damages, punitivedamages, foreseeable or unforeseeable economic damages, damages for pain andsuffering or emotional distress, adverse tax consequences or any other kind orform of damages.  The remedy, if any,awarded by such arbitrator shall be the sole and exclusive remedy for each andevery claim which is subject to 

 

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arbitrationpursuant to this Section 11.  Anylimitations on the relief that can be awarded by the arbitrator are in no wayintended (i) to create rights or claims that can be asserted outsidearbitration or (ii) in any other way to reduce the exclusivity ofarbitration as the sole dispute resolution mechanism with respect to this Plan.

 

**(c)****          **ThePlan and the Company will be the necessary parties to any action or proceedinginvolving the Plan.  No person employedby the Company, no Eligible Employee or any other person having or claiming tohave an interest in the Plan will be entitled to any notice or process, unlesssuch person is a named party to the action or proceeding.  In any arbitration proceeding, all relevantstatutes of limitation apply.  Any finaljudgment or decision that may be entered in any such action or proceeding willbe binding and conclusive on all persons having or claiming to have anyinterest in the Plan.

 

**SECTION 12.**    BASIS OF PAYMENTS TO AND FROM PLAN.

 

All benefits under the Plan shall be paid bythe Company.  The Plan shall be unfunded,and benefits hereunder shall be paid only from the general assets of theCompany.

 

**SECTION 13.**    OTHER PLAN INFORMATION.

 

**(a)****           Employerand Plan Identification Numbers.**  TheEmployer Identification Number assigned to the Company (which is the “PlanSponsor” as that term is used in ERISA) by the Internal Revenue Service is 77-0182779.  The Plan Number assigned to the Plan by thePlan Sponsor pursuant to the instructions of the Internal Revenue Service is 520.

 

**(b)****           EndingDate for Plan’s Fiscal Year.**  Thedate of the end of the fiscal year for the purpose of maintaining the Plan’srecords is May 31.

 

**(c)****           Agentfor the Service of Legal Process**. The agent for the service of legal process with respect to the Plan is:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333 Balboa Avenue

SanDiego, California 92123

 

**(d)****           PlanSponsor and Administrator.**  The “PlanSponsor” and the “Plan Administrator” of the Plan is:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333 Balboa Avenue

SanDiego, California 92123

 

The Plan Sponsor’s and Plan Administrator’stelephone number is (858) 277-6780.  The Plan Administrator is the named fiduciarycharged with the responsibility for administering the Plan.

 

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**SECTION 14.**    STATEMENT OF ERISA RIGHTS.

 

Participants in this Plan (which is a welfarebenefit plan sponsored by Cubic Corporation) are entitled to certain rights andprotections under ERISA.  If you are aParticipant, you are considered a participant in the Plan for the purposes ofthis Section 14 and, under ERISA, you are entitled to:

 

**Receive Information About Your Plan andBenefits**

 

**(a)****          **Examine,without charge, at the Plan Administrator’s office and at other specifiedlocations, such as worksites, all documents governing the Plan and a copy ofthe latest annual report (Form 5500 Series), if applicable, filed by thePlan with the U.S. Department of Labor and available at the Public Disclosure Room ofthe Employee Benefits Security Administration;

 

**(b)****          **Obtain,upon written request to the Plan Administrator, copies of documents governingthe operation of the Plan and copies of the latest annual report (Form 5500Series), if applicable, and an updated (as necessary) Summary PlanDescription.  The Administrator may makea reasonable charge for the copies; and

 

**(c)****          **Receivea summary of the Plan’s annual financial report, if applicable.  The Plan Administrator is required by law tofurnish each participant with a copy of this summary annual report.

 

**Prudent Actions By Plan Fiduciaries**

 

In addition tocreating rights for Plan participants, ERISA imposes duties upon the people whoare responsible for the operation of the employee benefit plan.  The people who operate the Plan, called “fiduciaries”of the Plan, have a duty to do so prudently and in the interest of you andother Plan participants and beneficiaries. No one, including your employer, your union or any other person, mayfire you or otherwise discriminate against you in any way to prevent you fromobtaining a Plan benefit or exercising your rights under ERISA.

 

**Enforce Your Rights**

 

If your claim for a Plan benefit is denied orignored, in whole or in part, you have a right to know why this was done, toobtain copies of documents relating to the decision without charge, and toappeal any denial, all within certain time schedules.

 

Under ERISA, there are steps you can take toenforce the above rights.  For instance,if you request a copy of Plan documents or the latest annual report from thePlan, if applicable, and do not receive them within 30 days, you may file suitin a Federal court.  In such a case, thecourt may require the Plan Administrator to provide the materials and pay youup to $110 a day until you receive the materials, unless the materials were notsent because of reasons beyond the control of the Plan Administrator.

 

If you have a claim for benefits which isdenied or ignored, in whole or in part, you may sue or exercise such otherrights as are described in this Plan.

 

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If you are discriminated against forasserting your rights, you may seek assistance from the U.S. Department ofLabor, or you may file suit in a Federal court. The court will decide who should pay court costs and legal fees.  If you are successful, the court may orderthe person you have sued to pay these costs and fees.  If you lose, the court may order you to paythese costs and fees, for example, if it finds your claim is frivolous.

 

**Assistance With Your Questions**

 

If you have any questions about the Plan, youshould contact the Plan Administrator. If you have any questions about this statement or about your rightsunder ERISA, or if you need assistance in obtaining documents from the PlanAdministrator, you should contact the nearest office of the Employee BenefitsSecurity Administration, U.S. Department of Labor, listed in your telephonedirectory or the Division of Technical Assistance and Inquiries, EmployeeBenefits Security Administration, U.S. Department of Labor, 200 ConstitutionAvenue N.W., Washington, D.C. 20210.  Youmay also obtain certain publications about your rights and responsibilitiesunder ERISA by calling the publications hotline of the Employee BenefitsSecurity Administration.

 

**SECTION 15.**    GENERAL PROVISIONS.

 

**(a)****           Notices. **Any notice, demand or request required orpermitted to be given by either the Company or a Participant pursuant to theterms of this Plan shall be in writing and shall be deemed given when deliveredpersonally or deposited in the U.S. mail, First Class with postageprepaid, and addressed to the parties, in the case of the Company, at theaddress set forth in Section 10(a) and, in the case of a Participant,at the address as set forth in the Company’s employment file maintained for theParticipant as previously furnished by the Participant or such other address asa party may request by notifying the other in writing.

 

**(b)****           Transferand Assignment. **The rights andobligations of a Participant under this Plan may not be transferred or assignedwithout the prior written consent of the Company.  This Plan shall be binding upon any survivingentity resulting from a Change in Control and upon any other person who is asuccessor by merger, acquisition, consolidation or otherwise to the businessformerly carried on by the Company without regard to whether or not such personor entity actively assumes the obligations hereunder.

 

**(c)****           Waiver. **Any Party’s failure to enforce anyprovision or provisions of this Plan shall not in any way be construed as awaiver of any such provision or provisions, nor prevent any Party fromthereafter enforcing each and every other provision of this Plan.  The rights granted the Parties herein arecumulative and shall not constitute a waiver of any Party’s right to assert allother legal remedies available to it under the circumstances.

 

**(d)****           Severability. **Should any provision of this Plan bedeclared or determined to be invalid, illegal or unenforceable, the validity,legality and enforceability of the remaining provisions shall not in any way beaffected or impaired.

 

**(e)****           Section Headings. **Section headings in this Plan areincluded for convenience of reference only and shall not be considered part ofthis Plan for any other purpose.

 

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**SECTION 16.**    EXECUTION.

 

To record the adoption of the Plan as setforth herein, Cubic Corporation has caused its duly authorized officer toexecute the same as of the Effective Date.

 
|   | **CUBIC CORPORATION**   |
|--------|-------------------------|
|   | ** **              |
|   |                    |
|   | /s/ William W. Boyle    |   |
|   | Senior Vice President,  |
|   | Chief Financial Officer |

 

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**EXHIBIT A**

 

**CUBICCORPORATION**

**TRANSITIONPROTECTION PLANPARTICIPATION NOTICE**

 
| **To**:   |
|-----------|
|      |
| **Date**: |

 

Cubic Corporation (the “***Company***”) has adoptedthe Cubic Corporation Transition Protection Plan (the “***Plan***”).  The Company is providing you with thisParticipation Notice to inform you that, given your position at the Company,you qualify as a participant in the Plan. A copy of the Plan document, whichalso constitutes a summary plan description, is attached to this ParticipationNotice. The terms and conditions of your participation in the Plan are as setforth in the Plan, and in the event of any conflict between this ParticipationNotice and the Plan, the terms of the Plan shall prevail. Subject to theprovisions of the Plan, the details of your Plan benefits, as described in Section 4of the Plan, are as follows:

 

**Cash SeveranceBenefit:**                             months.

 

**Continued Medical Benefits:**                            months, or such earlier date as you shall secure subsequent employment thatshall provide you with substantially similar medical benefits.

 

**Outplacement Services: **Up to $              .

 

Please retain a copy of this ParticipationNotice, along with the Plan document, for your records.

 
|   | **CUBIC CORPORATION** |
|--------|-----------------------|
|   |                  |
|   | By:                   |   |
|   |                  |   |
|   | Its:                  |   |

 

The undersigned Participant hereby acknowledges receipt of theforegoing Participation Notice and the Plan.

 
|   |       |
|--------|------------|
|   |       |
|   |       |
|   |       |
|   | Print name |

 

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** **

**EXHIBIT B**

 

**RELEASEAGREEMENT**

 

**I understand and agree completely to theterms set forth in the Cubic Corporation Transition Protection Plan (the “*Plan*”). I understand that this release andwaiver (the “*Release*”), togetherwith the Plan, constitutes the complete, final and exclusive embodiment of theentire agreement between the Company and me with regard to the subject matterhereof.  I am not relying on any promiseor representation by the Company that is not expressly stated herein.**

 

In consideration of benefits I will receiveunder the Plan, I hereby generally and completely release the Company and itsdirectors, officers, employees, shareholders, members, partners, agents,attorneys, predecessors, successors, parent and subsidiary entities, insurers,affiliates, and assigns from any and all claims, liabilities and obligations,both known and unknown, that arise out of or are in any way related to events,acts, conduct, or omissions occurring prior to my signing this Release.  This Release includes, but is not limited to:(1) all claims arising out of or in any way related to my employment withthe Company or the termination of that employment; (2) all claims relatedto my compensation or benefits from the Company, including, but not limited to,salary, bonuses, commissions, vacation pay, expense reimbursements, severancepay, fringe benefits, stock, stock options, or any other ownership interests inthe Company; (3) all claims for breach of contract, wrongful termination,and breach of the implied covenant of good faith and fair dealing; (4) alltort claims, including, but not limited to, claims for fraud, defamation,emotional distress, and discharge in violation of public policy; and (5) allfederal, state, and local statutory claims, including, but not limited to,claims for discrimination, harassment, retaliation, attorneys’ fees, or otherclaims arising under the federal Civil Rights Act of 1964 (as amended), thefederal Americans with Disabilities Act of 1990, the federal Age Discriminationin Employment Act of 1967 (as amended) (“***ADEA***”), and the California Fair Employmentand Housing Act (as amended).

 

If I am over the age of 40 years at the timeof an Covered Termination (as that term is defined in the Plan), I acknowledgethat I am knowingly and voluntarily waiving and releasing any rights I may haveunder the ADEA.  I also acknowledge thatthe consideration given under the Release for the waiver and release in thepreceding paragraph hereof is in addition to anything of value to which I wasalready entitled.  I further acknowledgethat I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rightsor claims that may arise on or after the date I execute this Release; (B) I shouldconsult with an attorney prior to executing this Release; (C) I have twenty-one (21) days toconsider this Release (although I may choose to voluntarily execute thisRelease earlier); (D) Ihave seven (7) days following my execution of this Release to revoke theRelease; and (E) thisRelease shall not be effective until the date upon which the revocation periodhas expired, which shall be the eighth (8th) day after I executethis Release.

 

If I am not over the age of 40 years at thetime of an Covered Termination (as that term is defined in the Plan), Iunderstand and agree that I will have ten days to consider and execute thisrelease and that it shall be effective upon such execution.

 

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I represent that I have not filed any claimsagainst the Company, and agree that, except as such waiver may be prohibited bystatute, I will not file any claim against the Company or seek any compensationfor any claim other than the payments and benefits referenced herein.  I agree to indemnify and hold the Companyharmless from and against any and all loss, cost, and expense, including, butnot limited to court costs and attorney’s fees, arising from or in connectionwith any action which may be commenced, prosecuted, or threatened by me or formy benefit, upon my initiative, or with my aid or approval, contrary to theprovisions of this Release.

 

I acknowledge that I have read and understandSection 1542 of the California Civil Code which reads as follows:  **“A general release doesnot extend to claims which the creditor does not know or suspect to exist inhis favor at the time of executing the release, which if known by him must havematerially affected his settlement with the debtor.”**  I hereby expressly waive and relinquish allrights and benefits under that section and any law of any jurisdiction ofsimilar effect with respect to my release of any claims I may have against theCompany, its affiliates, and the entities and persons specified above.

 

 
|   | **EMPLOYEE** |   |
|--------|--------------|--------|
|   |         |   |
|   |         |   |
|   |         |   |
|   |         |   |
|   | Name:        |   |   |
|   |         |   |   |
|   |         |   |
|   | Date:        |   |   |
|        |              |        |  |  |

 

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