**EXHIBIT10.2**

 

**CUBIC CORPORATION**

 

**TRANSITION PROTECTION PLAN**

 

**SECTION 1.**         INTRODUCTION.

 

TheCubic Corporation Transition Protection Plan (the ***“Plan”***)is hereby established effective November 29, 2005 (the ***“Effective Date”***).

 

TheCompany considers it essential to the best interests of the Company and itsshareholders to foster the continuous employment of the Company’s keymanagement personnel. The Board of Directors of the Company (the ***“Board”***) recognizes that thepossibility of a Change in Control of the Company may occur and the uncertaintyand questions that this possibility may raise among management could result inthe departure of key executives, the distraction of key executives from themanagement of the business, or the inability to hire new key executives, all tothe detriment of the Company and its shareholders.

 

The Board has carefullyconsidered the report of the Executive Compensation Committee and itsindependent advisors and has evaluated available alternative courses of action,including that of continuing the status quo. After discussion, debate andevaluation, the Board has unanimously decided to adopt the Plan to reinforceand encourage the continued dedication of key executives to their dutieswithout the distraction arising from the possibility of a Change in Control ofthe Company and to provide such key executives with the benefits stated hereinthat ensure that the expectations of the executives will be satisfied, and thatare also competitive with those of similar companies.

 

ThePlan will provide for the payment of severance benefits to certain eligibleemployees of the Company in the event that such employees are subject toqualifying employment terminations in connection with a Change in Control.

 

ThisPlan shall supersede any severance benefit plan, policy or practice previouslymaintained by the Company, other than an individually negotiated contract oragreement with the Company relating to severance or change in control benefitsthat is in effect on an employee’s termination date, in which case suchemployee’s severance benefit, if any, shall be governed by the terms of suchindividually negotiated employment contract or agreement and shall be governedby this Plan only to the extent that the reduction pursuant to Section 7(b)below does not entirely eliminate benefits under this Plan. Notwithstanding theforegoing, this Plan shall not supersede, but rather shall supplement theenhanced severance benefits (but not the Health Care Benefits) contained in theCompany’s Severance Policy in effect as of the Effective Time. This documentalso is the Summary Plan Description for the Plan.

 

**SECTION 2.**         DEFINITIONS.

 

Forpurposes of the Plan, the following terms are 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 a Participant,  an amount equal to the average of the annualcash and long-term bonuses  (excludingBase Salary and excluding any commissions, expatriate premiums, fringe benefits(including without limitation car allowances), option grants, equity awards,employee benefits and other similar items of compensation) paid or payable bythe Company to the Participant for the five fiscal years (or such annualizedshorter period as the Participant has been employed by the Company) immediatelyprior to the Change in Control or immediately prior to the Participant’stermination of employment, whichever is greater.

 

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

 

**(i)****           **Any acquisition of beneficial ownership (asdefined in the Securities Exchange Act of 1934, as amended (the ***“Exchange Act”***)) as defined in Rule13d-3 of the Exchange Act of such number of shares of the Company’s equitysecurities by any individual, entity or group (within the meaning of Section13(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)****          **Any sale of a Substantial Portion of theProperty (as defined herein) of the Company.

 

**(iii)****        **As to an Participant who is an employee of aSubsidiary, any sale of a Substantial Portion of the Property or the sale orissuance of a majority of the stock of such Subsidiary by the Company to anyparty other than an Affiliate of the Company;

 

**(iv)****         **Approval by the stockholders of the Companyof a complete liquidation or dissolution of the Company; or

 

**(v)****           **The consummation by the Company, directly orindirectly, in one or more steps, of a merger, consolidation, reorganization,or business combination or any act or event which results in a majority of theCompany’s Board as existing immediately prior to such acts or events notcontinuing to serve as such.

 

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

 

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

 

**(g)****          *****“Constructive Termination”*** means a voluntary termination of employmentby a Participant after one of the following is undertaken without theParticipant’s express written consent:

 

**(i)****           **a substantial reduction in the nature orscope of the Participant’s authority, duties, function or responsibilities (andnot simply a change in title or reporting relationships) in effect 

 

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immediately prior to the effective date of theChange in 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 a separatelegal entity or business unit and the Participant holds the same position insuch legal entity or business unit as the Participant held before sucheffective date, or (b) the Participant holds a position with authority, duties,function or****responsibilities comparable(though not necessarily identical, in view of the relative sizes of the Companyand the entity involved in the Change in Control) to those of the Participantprior to the effective date of the Change in Control;

 

**(ii)****          **areduction in the Participant’s base salary (exceptfor salary decreases generally applicable to the Company’s othersimilarly-situated employees);

 

**(iii)****        **an****elimination ofthe Participant’s opportunity to achieve bonuses on a basis comparable to thatprovided prior to the Change in Control, or, if the Participant participates inthe Company’s Management Annual Incentive Plan or the Company’s Management3-Year Incentive Plan, then an amendment to either such plan that reduces thepercentage of average annual salary used to determine Participant’s bonus undersuch plan or plans either: (x) by more than 50% or (y) by an amendment that isnot generally applicable to the Company’s other similarly-situated employees;

 

**(iv)****         **an increase in the Participant’s one-waydriving 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)****           **a material breach by the Company of anyprovisions of the Plan or any enforceable written agreement between the Companyand the Participant; ** **or

 

**(vi)****         **any failure by the Company to obtainassumption of the Plan by any successor or assign of the Company.

 

Notwithstanding theforegoing, 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)months of the date the event occurred, and (z) the Company does not rescind orcure the conduct giving rise to the event described in this Section 2(g) withinten (10) days of receipt by the Company of the Constructive Termination Notice.

 

**(h)****          *****“Covered Termination”*** means, with respect to a Participant, an Involuntary TerminationWithout Cause or a Constructive Termination, but only if such event occurs atany time within three (3) months before or twenty-four (24) months following the effective date of a Change in Control.Termination of employment of a Participant due to death or disability shall notconstitute a Covered Termination unless a voluntary termination of employmentby the Participant immediately prior to the Participant’s death or disabilitywould have qualified as a Constructive Termination.

 

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

 

**(j)****           *****“Involuntary Termination WithoutCause”*** means, withrespect to a Participant, an involuntary termination of employment by theCompany other than for one of the following reasons:

 

**(i)****           **the willful and continued failure of theParticipant to perform substantially the Participant’s duties to the Company asthose duties exist on the date of the Change in Control (or the date oftermination, if earlier), other than any failure resulting from circumstancesoutside the Participant’s

 

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control, or from incapacity of the Participant dueto physical or mental illness or disability, or following the Participant’sdelivery of a Constructive Termination Notice, after a written demand forsubstantial performance is delivered to the Participant, which demand specificallyidentifies the manner in which the Company believes that the Participant hasnot substantially performed the Participant’s duties satisfactorily, andprovided that the Company demonstrates that such failure has a demonstrablyharmful impact on the Company or its reputation, and provided further that theParticipant has been given a period of at least 30 days to cure his failure inperformance. No act or failure to act shall be considered “willful” unless itis done, or omitted to be done, in bad faith or without reasonable belief thatthe action was in the best interests of the Company or the Subsidiary; or

 

**(ii)****          **the Participant’s gross negligence or breachof fiduciary duty to the Company involving personal profit, personal dishonestyor recklessness, or the Participant’s material breach of any agreement with theCompany, including a material violation of Company policies and procedures, *provided that*such termination of employment occur within 12months following the Company’s discovery of such event;

 

**(iii)****        **the Participant’s conviction (which hasbecome final) or entry of a plea of guilty or *nolocontendere* regarding an act that would be deemed a felony underCalifornia or Federal criminal statutes (or any comparable criminal laws of anyjurisdiction in which the Participant is permanently employed by the Company ora Subsidiary) that has a demonstrably harmful impact on the Company’s businessor reputation, as determined in good faith by the Company’s ExecutiveCompensation Committee, *provided that*suchtermination occur within 12 months following the Company’s discovery of suchevent.

 

**(k)****          *****“Participant”*** means an individual who is employed by theCompany as its Executive Chairman of the Board, Chief Executive Officer, as asenior vice president, or as a vice president (other than any individual who isa vice president on sales commission, as determined by the Company in its solediscretion) and such other key employees as may be recommended by the Company’smanagement and selected by the Company’s Executive Compensation Committee; *provided, however*, that if the Company’sExecutive Compensation Committee shall make an affirmative determination thatan employee serving in any such capacity shall not be a Participant, then suchemployee shall not be deemed a Participant. Any key employee who is selected bythe Company’s Executive Compensation Committee to be a Participant shall becomea Participant immediately following such action. The determination of whetheran employee is a Participant shall be made by such Committee, in its solediscretion, and such determination shall be binding and conclusive on allpersons.

 

**(l)****           *****“ParticipationNotice”*** means the latestnotice delivered by the Company to a Participant informing the employee thatthe employee is a Participant in the Plan, substantially in the form of **Exhibit A** hereto.

 

**(m)****         *****“PlanAdministrator”*** means theBoard or any committee duly authorized by the Board to administer the Plan. ThePlan Administrator may, but is not required to be, the Compensation Committeeof the Board. The Board may at any time administer the Plan, in whole or inpart, notwithstanding that the Board has previously appointed a committee toact as the Plan Administrator.

 

**(n)****          *****“Subsidiary”***or ***“Subsidiaries”***meansCubic Defense Applications, Inc., Cubic Transportation Systems, Inc., CubicSimulation Systems, Inc. and Cubic Applications, Inc. and any other entity thatis designated by the Board.

 

**(o)****          *****“Substantial Portion of theProperty”*** means the saleof assets for an amount totaling at least 51% of the aggregate consolidatedbook value of the assets of the Company or a Subsidiary as set 

 

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forth on the consolidated balance sheet of theCompany or on the balance sheet of a Subsidiary for its most recent year end,as certified by its regular independent certified public accountants.

 

**SECTION 3.**         ELIGIBILITY FOR BENEFITS.

 

**(a)****          ****General Rules.**Subject to the provisions set forth in thisSection and Section 6, in the event of a Covered Termination, the Company willprovide the severance benefits described in Section 4 of the Plan to theaffected Participant. Promptly upon an employee becoming a Participant, theCompany shall deliver to the Participant a Participation Notice.

 

**(b)****          ****Exceptions to Benefit Entitlement.**An employee, including anemployee who otherwise is a Participant, will not receive benefits under thePlan (or will receive reduced benefits under the Plan) in the followingcircumstances, as determined by the Company in its sole discretion:

 

**(i)****           **Theemployee has executed an individually negotiated employment contract oragreement with the Company relating to severance or change in control benefitsthat is in effect on his or her termination date, in which case such employee’sseverance benefit, if any, shall be governed by the terms of such individuallynegotiated employment contract or agreement and shall be governed by this Planonly to the extent that the reduction pursuant to Section 6(b) below does notentirely eliminate benefits under this Plan.

 

**(ii)****          **The employee voluntarily terminatesemployment with the Company in order to accept employment with another entitythat is controlled (directly or indirectly) by the Company or is otherwise anaffiliate of the Company.

 

**(iii)****        **The employee is offered immediatereemployment by a successor to the Company or by a purchaser of its assets, asthe case may be, following a change in ownership of the Company or a sale ofall or substantially all the assets of a division or business unit of theCompany. For purposes of the foregoing, “immediate reemployment” means that theemployee’s employment with the successor to the Company or the purchaser of itsassets, as the case may be, results in uninterrupted employment such that theemployee does not suffer a lapse or reduction in pay or benefits (includingcoverage under this Plan) as a result of the change in ownership of the Companyor the sale of its assets.

 

**(iv)****         **The employee does not confirm in writing thathe or she shall be subject to the Company’s Confidentiality Agreement.

 

**(c)****          ****Termination of Benefits.**A Participant’s right to receive the paymentof benefits under this Plan shall terminate immediately if, at any time priorto or during the period for which the Participant is receiving benefitshereunder, the Participant, without the prior written approval of the Company:

 

**(i)****           **willfully breaches a material provision ofthe Participant’s proprietary information or confidentiality agreement with theCompany, as referenced in Section 3(b)(iv);

 

**(ii)****          **encourages or solicits any of the Company’sthen current employees to leave the Company’s employ for any reason orinterferes in any other manner with employment relationships at the timeexisting between the Company and its then current employees; or

 

**(iii)****        **induces any of the Company’s then currentclients, customers, suppliers, vendors, distributors, licensors, licensees orother third party to terminate their existing business relationship with theCompany or interferes in any other manner with any existing businessrelationship between the 

 

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Company and any then current client, customer,supplier, vendor, distributor, licensor, licensee or other third party.

 

If a Participant is in doubtas to whether a proposed activity may be described in Section 3(c)(i) – (iii),then such Participant shall have the right to request an interpretation by theCompany. Such request shall be made by giving notice to the Company. Unlessnotice that such activity is described in Section 3(c)(i)-(iii) is provided tothe Participant within 45 days after the date of such Participant’s notice,then such activity shall not be deemed to be described in this Section3(c)(i)-(iii).

 

**SECTION 4.**         AMOUNT OF BENEFITS.

 

**(a)****          ****Cash Severance Benefits.**Each Participant who incurs a CoveredTermination shall be entitled to receive a cash severance benefit equal to the number of months of BaseSalary plus Average Bonus set forth in such Participant’s Participation Notice.Any cash severance benefits provided under this Section 4(a) shall be paidpursuant to the provisions of Section 5.

 

**(b)****          ****Accelerated Stock AwardVesting and Extended Exercisability of Stock Options.**If a Participant incurs a CoveredTermination, then effective as of the date of the Participant’s CoveredTermination (or, if such Covered Termination occurs prior to a Change in Control,then effective as of the date of such Change in Control), (i) the vesting andexercisability of all outstanding options to purchase the Company’s commonstock that are held by the Participant on such date shall be accelerated infull, and (ii) any reacquisition or repurchase rights held by the Company inrespect of common stock issued pursuant to any other stock award granted to theParticipant by the Company shall lapse.

 

Inaddition, the post-termination of employment exercise period of any outstandingoption held by the Participant on the date of his or her Covered Terminationshall be extended, if necessary, such that the post-termination of employmentexercise period shall not terminate prior to the later of (i) the date twelve(12) months after the effective date of the Covered Termination (or, if thestock option was held by the individual at the time he or she first became aParticipant in this Plan and counsel for the Company has not advised theCompany that such acceleration would not cause such option to be treated ascovered by Section 409A of the Code or would not cause the Participant tobecome subject to the immediate taxation prior to the date of exercise,additional tax and interest under Section 409A of the Code, then the later ofthe 15th day of the third month following the date at which, orDecember 31 of the calendar year in which, the stock option would otherwisehave expired if the stock option had not been extended pursuant to this Section4(b), based on the terms of the stock option at the original grant date) or(ii) the post-termination exercise period provided for in such option; *provided, however*, that such option shall not be exercisableafter the expiration of its maximum term.

 

**(c)****          ****Continued Medical Benefits**. If a Participant incurs a CoveredTermination and the Participant was enrolled in a health, dental, or vision****plan sponsored by the Company immediately prior to suchCovered Termination, the Participant may be eligible to continue coverage undersuch health, dental, or vision plan (or to convert to an individual policy), atthe time of the Participant’s termination of employment, under the ConsolidatedOmnibus Budget Reconciliation Act of 1985 (***“COBRA”***). TheCompany will notify the Participant of any such right to continue such coverageat the time of termination pursuant to COBRA. No provision of this Plan willaffect the continuation coverage rules under COBRA, except that the Company’spayment, if any, of applicable insurance premiums will be credited as paymentby the Participant for purposes of the Participant’s payment required underCOBRA. Therefore, the period during which a Participant may elect to continuethe Company’s health, dental, or vision plan coverage at his or her own expenseunder COBRA, the length of time during which COBRA coverage will be madeavailable to the Participant, and all other rights and obligations of theParticipant 

 

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under COBRA (except the obligation to pay insurancepremiums that the Company pays, if any) will be applied in the same manner thatsuch rules would apply in the absence of this Plan.

 

If a Participant timelyelects continued coverage under COBRA, the Company shall pay the full amount ofthe Participant’s COBRA premiums on behalf of the Participant for theParticipant’s continued coverage under the Company’s health plans (includingany dental care plans, but excluding any vision care plans maintained by theCompany), including coverage for the Participant’s eligible dependents, duringthe lesser of: (i) the number of months of Base Salary and Average Bonus inrespect of which the amount paid to the Participant under Section 4(a) wascalculated (the ***“Severance Period”***), or (ii)18 months; *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 Participant shall be required to notifythe Company immediately if the Participant becomes covered by a health plan ofa subsequent employer. Upon the conclusion of such period of insurance premiumpayments made by the Company, the Participant will be responsible for theentire payment of premiums required under COBRA for the duration of the COBRAperiod.

 

For purposes of this Section4(c), (i) references to COBRA shall be deemed to refer also to analogousprovisions of state law and (ii) any applicable insurance premiums that arepaid by the Company shall not include any amounts payable by the Participantunder an Code Section 125 health care reimbursement plan, which amounts, ifany, are the sole responsibility of the Participant.

 

**(d)****          ****Other Employee Benefits.**During a Participant’s Severance Period, theParticipant shall not be entitled to reimbursement for fringe benefits otherthan as provided in this Plan, nor shall the Participant be entitled to receiveany payments or other compensation attributable to vacation periods that wouldhave been earned had Participant’s employment continued during the SeverancePeriod. Executive’s participation in all tax-deferred or tax qualifiedretirement and cafeteria plans shall cease upon termination of employment. Allother employee benefits not described in this Section 4 shall terminate as ofthe Participant’s termination date (except to the extent that a conversionprivilege may be available thereunder).

 

**(e)****          ****Outplacement Services.**Upon a Covered Termination, the Company shallpay an appropriate executive out placement service up to the amount listed insuch Participant’s Participation Notice for its services rendered to theParticipant.

 

**(f)****           ****Moving Expenses.**If within 24 months prior to the Change inControl a Participant had relocated his personal residence at the request ofthe Company, then upon such Participant’s Covered Termination the Company shallpay all costs and expenses of relocating the Participant, his or her householdgoods and his or her family to a location of the Participant’s choice, providedthat the cost of such relocation shall not exceed the cost to relocate to thecity in which his or her immediately previous residence was located, and *provided further that* such costs and expenses wouldotherwise be deductible under Code Section 217. If the Participant hadpurchased a residence when he or she relocated, the Company shall alsoreimburse the Participant for the reasonable costs of sale of such newresidence in accordance with the Company’s relocation policies in existenceimmediately before the Change in Control. All such amounts shall be grossed upfor federal and state income taxes.

 

**(g)****          ****Additional Benefits.**Notwithstanding the foregoing, the Companymay, in its sole discretion, provide benefits in addition to those pursuant toSections 4(a), 4(b), 4(c), 4(d), 4(e), and 4(f), to Participants or employeeswho 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 

 

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to provide such benefits to any other Participant orto any other Non-Participant, even if similarly situated. If benefits under thePlan are provided to a Non-Participant, references in the Plan to “Participant”(withthe exception of Sections 4(a), 4(b), 4(c), 4(d), 4(e), and 4(f)) shall bedeemed to refer to such Non- Participants.

 

**SECTION 5.**         TIME AND FORM OF SEVERANCEPAYMENTS.

 

**(a)****          ****General Rules.**Subject to Section 5(b), any cash severancebenefit provided under Section 4(a) shall be paid in installments pursuant tothe Company’s regularly scheduled payroll periods commencing as soon aspracticable following the effective date of a Participant’s Covered Termination(or, if such Covered Termination occurs prior to a Change in Control, thencommencing as soon as practicable following the effective date of the Change inControl) and shall be subject to all applicable withholding for federal, stateand local taxes. In the event of a Participant’s death prior to receiving allinstallment payments of his or her cash severance benefit under Section 4(a),any remaining installment payments shall be made to the Participant’s estate onthe same payment schedule as would have occurred absent the Participant’s death.In no event shall payment of any Plan benefit be made prior to the effectivedate of the Participant’s Covered Termination or prior to the effective date ofthe release described in Section 7(a).

 

**(b)****          ****Application of Section 409A.**In the event that any cash severance benefitprovided under Section 4(a) or continued medical benefit under Section 4(c)shall fail to satisfy the distribution requirement of Section 409A(a)(2)(A) ofthe Code as a result of the application of Section 409A(a)(2)(B)(i) of theCode, the payment of such benefit shall be accelerated to the minimum extentnecessary so that the benefit is not subject to the provisions of Section409A(a)(1) of the Code. (The payment schedule as revised after the applicationof the preceding sentence shall be referred to as the ***“RevisedPayment Schedule.”***)  Inthe event the payment of benefits pursuant to the Revised Payment Schedulewould be subject to Section 409A(a)(1) of the Code, the payment of suchbenefits shall not be paid pursuant to the Revised Payment Schedule and insteadthe payment of such benefits shall be delayed to the minimum extent necessaryso that such benefits are not subject to the provisions of Section 409A(a)(1)of the Code. The Board may attach conditions to or adjust the amounts paidpursuant to this Section 5(b) to preserve, as closely as possible, the economicconsequences that would have applied in the absence of this Section 5(b); *provided, however*, that no such condition or adjustmentshall result in the payments being subject to 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 precedingsentence, with respect to any outstanding option held by the Participant, thereceipt of benefits shall be deemed to be the exercise of such option pursuantto the extended exercisability of such option under Section 4(b), rather thanthe acceleration or extension of such option’s exercisability. The Company, inits sole discretion, may modify the form of the required release to comply withapplicable law and shall determine the form of the required release, which maybe incorporated into a termination agreement or other agreement with theParticipant.

 

**(b)****          ****Certain Reductions.**The Company, in its sole discretion, shallhave the authority to reduce a Participant’s severance benefits, in whole or inpart, by any other severance benefits, pay in lieu of notice, or other similarbenefits payable to the Participant by the Company that become payable inconnection with the Participant’s termination of employment pursuant to(i) any applicable legal requirement, including, without limitation, theWorker Adjustment and Retraining Notification Act (the 

 

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***“WARN Act”***), (ii) a written employment orseverance agreement with the Company, or (iii) any Company policy or practiceproviding for the Participant to remain on the payroll for a limited period oftime after being given notice of the termination of the Participant’semployment. The benefits provided under this Plan are intended to satisfy, inwhole or in part, any and all statutory obligations and other contractualobligations of the Company that may arise out of a Participant’s termination ofemployment, and the Plan Administrator shall so construe and implement theterms of the Plan. The Company’s decision to apply such reductions to theseverance benefits of one Participant and the amount of such reductions shallin no way obligate the Company to apply the same reductions in the same amountsto the severance benefits of any other Participant, even if similarly situated.In the Company’s sole discretion, such reductions may be applied on aretroactive basis, with severance benefits previously paid beingrecharacterized as payments pursuant to the Company’s statutory or othercontractual 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 orotherwise, nor shall the amount of any payment provided for under this Plan bereduced by any compensation earned by a Participant as a result of employmentby another employer or any retirement benefits received by such Participantafter the date of the Participant’s termination of employment with the Company.

 

**(d)****          ****Non-Duplication of Benefits.**Except as otherwise specifically provided forherein, no Participant is eligible to receive benefits under this Plan orpursuant to other contractual obligations more than one time. This Plan isdesigned to provide certain severance pay and change in control benefits toParticipants pursuant to the terms and conditions set forth in this Plan. Thepayments pursuant to this Plan are in addition to, and not in lieu of, anyunpaid salary, bonuses or benefits to which a Participant may be entitled forthe period ending with the Participant’s Covered Termination.

 

**(e)****          ****Indebtedness of Participants.**If a Participant is indebted to the Companyon the effective date of his or her Covered Termination, the Company reservesthe right to offset any severance payments under the Plan by the amount of suchindebtedness.

 

**(f)****           ****Parachute Payments.**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 ofthe Code, and (b) but for this sentence, would be subject to the excise taximposed by Section 4999 of the Code (the “**ExciseTax**”), then the Company shall cause to be determined, before anyamount of the Payment is paid to such Participant, which of the following twoalternative forms of payment would maximize the Participant’s after-taxproceeds: (i) payment in full of the entire amount of the Payment including anyamounts to be paid to the Participant pursuant to this Plan (a “**Full Payment**”), or (ii) payment of only apart of the Payment so that the Participant receive the largest paymentpossible 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 purposes of determining whether to make a FullPayment or a Reduced Payment, the Company shall cause to be taken into accountall applicable federal, state and local income and employment taxes and theExcise Tax (all computed at the highest applicable marginal rate, net of themaximum reduction in federal income taxes which could be obtained from adeduction of such state and local taxes). If a Reduced Payment is made, (i) thePayment shall 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) 

 

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cancellation of accelerated vesting of equity awardsother than stock options; (3) cancellation of accelerated vesting of stockoptions; and (4) reduction of other benefits paid to the Participant. In the eventthat acceleration of compensation from the Participant’s equity awards is to bereduced, such acceleration of vesting shall be canceled in the reverse order ofthe date of grant unless the Participant elects in writing a different orderfor cancellation.

 

The independent registered public accounting firm engaged by theCompany for general audit purposes as of the day prior to the effective date ofthe Change in Control shall make all determinations required to be made underthis Section. If the independent registered public accounting firm so engagedby the Company is serving as accountant or auditor for the individual, entityor group effecting the Change in Control, the Company shall appoint anationally recognized independent registered public accounting firm to make thedeterminations required hereunder. The Company shall bear all expenses withrespect to the determinations by such independent registered public accountingfirm required to be made hereunder.

 

The independent 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 independentregistered public accounting firm determines that no Excise Tax is payable withrespect to a Payment, either before or after the application of the ReducedAmount, it shall furnish the Company and the Participant with an opinionreasonably acceptable to the Participant that no Excise Tax will be imposedwith respect to such Payment. Any good faith determinations of the accountingfirm made hereunder shall be final, binding and conclusive upon the Company andthe Participant.

 

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

 

**(a)****          ****Exclusive Discretion.**The Plan Administrator shall have theexclusive discretion and authority to establish rules, forms, and proceduresfor the administration of the Plan and to construe and interpret the Plan andto 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 Plan Administrator shall be binding andconclusive on all persons.

 

**(b)****          ****Amendment or Termination.**The term of this Plan shall be the periodcommencing on the Effective Date and ending on December 31, 2008, provided,however, that commencing on January 1, 2006, and on each January 1 thereafter(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)****          **The Company’s Executive CompensationCommittee may amend the Plan to reduce the benefits provided under Section 4 ormay provide that a person who is a Participant shall no longer be a Participant;*provided, however*, that if theCompany’s Executive Compensation Committee either amends the Plan to reduce thebenefits provided under Section 4 or makes an affirmative determination that anemployee shall no longer be a Participant, then such action shall become firsteffective on the 3rd anniversary of such determination; *provided that,*within 30 days before or after such action,the Company gives the Participant notice of such event. The determination ofwhether to reduce the benefits provided in Section 4 or whether an employeeshall no longer be a Participant shall be made by the Company’s 

 

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Executive Compensation Committee, in its solediscretion, and such determination shall be binding and conclusive on allpersons.

 

**(d)****          **Regardless of whether such action would bedeemed to impair a Participant’s rights under the Plan, the Company’s ExecutiveCompensation Committee may amend the Plan in any way to comply with applicablelegal requirements. Except as expressly provided herein,  the Company’s Executive CompensationCommittee may 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 EMPLOYMENTCONTRACT.

 

ThePlan shall not be deemed (i) to give any employee or other person anyright to be retained in the employ of the Company or (ii) to interferewith the right of the Company to discharge any employee or other person at anytime, with or without cause, which right is hereby reserved.

 

**SECTION 9.**         LEGAL CONSTRUCTION.

 

ThisPlan shall be governed by and construed under the laws of the State ofCalifornia (without regard to principles of conflict of laws), except to theextent preempted by ERISA.

 

**SECTION 10.**           CLAIMS, INQUIRIES ANDAPPEALS.

 

**(a)****          ****Applications for Benefits andInquiries.**Any applicationfor benefits, inquiries about the Plan or inquiries about present or futurerights under the Plan must be submitted to the Plan Administrator in writing byan applicant (or his or her authorized representative). The Plan Administratoris:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333Balboa Avenue

SanDiego, California 92123

 

**(b)****          ****Denial of Claims.**In the event that any application forbenefits is denied in whole or in part, the Plan Administrator must provide theapplicant with written or electronic notice of the denial of the application,and of the applicant’s right to review the denial. Any electronic notice willcomply with the regulations of the U.S. Department of Labor. The notice ofdenial will be set forth in a manner designed to be understood by the applicantand will include the following:

 

**(1)****          **the specific reason or reasons for thedenial;

 

**(2)****          **references to the specific Plan provisionsupon which the denial is based;

 

**(3)****          **a description of any additional informationor material that the Plan Administrator needs to complete the review and anexplanation of why such information or material is necessary; and

 

**(4)****          **an explanation of the Plan’s reviewprocedures and the time limits applicable to such procedures, including astatement of the applicant’s right to bring a civil action under Section 502(a)of ERISA following a denial on review of the claim, as described in Section10(d) below.

 

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Thisnotice of denial will be given to the applicant within ninety (90) days afterthe Plan Administrator receives the application, unless special circumstancesrequire an extension of time, in which case, the Plan Administrator has up toan additional ninety (90) days for processing the application. If an extensionof time for processing is required, written notice of the extension will befurnished to the applicant before the end of the initial ninety (90) dayperiod.

 

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 application.

 

**(c)****          ****Request for a Review.**Any person (or that person’s authorizedrepresentative) for whom an application for benefits is denied, in whole or inpart, may appeal the denial by submitting a request for a review to the PlanAdministrator within sixty (60) days after the application is denied. A requestfor a review shall be in writing and shall be addressed to:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333Balboa Avenue

SanDiego, California 92123

 

Arequest for review must set forth all of the grounds on which it is based, allfacts in support of the request and any other matters that the applicant feelsare pertinent. The applicant (or his or her representative) shall have theopportunity to submit (or the Plan Administrator may require the applicant tosubmit) written comments, documents, records, and other information relating tohis or her claim. The applicant (or his or her representative) shall beprovided, upon request and free of charge, reasonable access to, and copies of,all documents, records and other information relevant to his or her claim. Thereview shall take into account all comments, documents, records and otherinformation submitted by the applicant (or his or her representative) relatingto the claim, without regard to whether such information was submitted orconsidered in the initial benefit determination.

 

**(d)****          ****Decision on Review.**The Plan Administrator will act on eachrequest for review within sixty (60) days after receipt of the request, unlessspecial circumstances require an extension of time (not to exceed an additionalsixty (60) days), for processing the request for a review. If an extension forreview is required, written notice of the extension will be furnished to theapplicant within the initial sixty (60) day period. This notice of extensionwill describe the special circumstances necessitating the additional time andthe date by which the Plan Administrator is to render its decision on thereview. The Plan Administrator will give prompt, written or electronic noticeof its decision to the applicant. Any electronic notice will comply with theregulations of the U.S. Department of Labor. In the event that the PlanAdministrator confirms the denial of the application for benefits in whole orin part, the notice will set forth, in a manner calculated to be understood bythe 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

 

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

 

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**(e)****          ****Rules and Procedures.**The Plan Administrator will establish rulesand procedures, consistent with the Plan and with ERISA, as necessary andappropriate in carrying out its responsibilities in reviewing benefit claims. ThePlan Administrator 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 Planmay be brought until the applicant (i) has submitted a written applicationfor benefits in accordance with the procedures described by Section 10(a)above, (ii) has been notified by the Plan Administrator that theapplication is denied, (iii) has filed a written request for a review ofthe application in accordance with the appeal procedure described in Section10(c) above, and (iv) has been notified that the Plan Administrator hasdenied the appeal. Notwithstanding the foregoing, if the Plan Administratordoes not respond to an applicant’s claim or appeal within the relevant timelimits specified in this Section 10, the applicant may proceed directly toarbitration pursuant to Section 11.

 

**SECTION11.**       ARBITRATION

 

**(a)****          **Any applicant’s claim remaining unresolvedafter exhaustion of the procedures in Section 10 (and to the extent permittedby law, any dispute concerning any breach or claimed breach of duty regardingthe Plan) shall be settled solely by binding arbitration in San Diego,California, by a single arbitrator with at least 20 years of employment lawexperience, in accordance with the Employment Claims Rules of the AmericanArbitration Association. No depositions may be taken. The arbitrator, inreviewing the decision of the Plan Administrator pursuant to Section 10, shallapply the standard of a reviewing court under ERISA, namely that such decisionshall be affirmed unless the arbitrator finds it to be arbitrary and capricious.Judgment on any award rendered by the arbitrator may be entered in any courthaving jurisdiction thereof. Each party to any dispute regarding the Plan shallpay the fees and costs of presenting his, her or its case in arbitration. All othercosts of arbitration, including the costs of any transcript of the proceedings,administrative fees, and the arbitrator’s fees shall be borne by the Company.

 

**(b)****          **Except as otherwise specifically provided inthis Plan, the provisions of this Section 11 shall be absolutely exclusive forany and all purposes and fully applicable to each and every dispute regardingthe Plan, including any claim which, if pursued through any state or federalcourt or administrative proceeding, would arise at law, in equity or pursuantto statutory, regulatory or common law rules, regardless of whether such claimwould arise in contract, tort or under any other legal or equitable theory orbasis. 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 thesole and exclusive remedy for each and every claim which is subject toarbitration pursuant to this Section 11. Any limitations on the relief that canbe awarded by the arbitrator are in no way intended (i) to create rights orclaims that can be asserted outside arbitration or (ii) in any other way toreduce the exclusivity of arbitration as the sole dispute resolution mechanismwith respect to this Plan.

 

**(c)****          **The Plan and the Company will be thenecessary parties to any action or proceeding involving the Plan. No personemployed by the Company, no Eligible Employee or any other person having orclaiming to have an interest in the Plan will be entitled to any notice orprocess, unless such person is a named party to the action or proceeding. Inany arbitration proceeding, all relevant statutes of limitation apply. Anyfinal judgment or decision that may be entered in any such action or proceedingwill be binding and conclusive on all persons having or claiming to have anyinterest in the Plan.

 

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**SECTION12.**       BASIS OF PAYMENTS TO ANDFROM PLAN.

 

Allbenefits under the Plan shall be paid by the Company. The Plan shall beunfunded, and benefits hereunder shall be paid only from the general assets ofthe Company.

 

**SECTION13.**       OTHER PLAN INFORMATION.

 

**(a)****          ****Employer and Plan IdentificationNumbers.**The EmployerIdentification Number assigned to the Company (which is the “Plan Sponsor” asthat term is used in ERISA) by the Internal Revenue Service is 77-0182779. ThePlan Number assigned to the Plan by the Plan Sponsor pursuant to theinstructions of the Internal Revenue Service is 520.

 

**(b)****          ****Ending Date for Plan’s FiscalYear.**The date of the end ofthe fiscal year for the purpose of maintaining the Plan’s records is May 31.

 

**(c)****          ****Agent for the Service of LegalProcess**. The agent for theservice of legal process with respect to the Plan is:

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333Balboa Avenue

San Diego, California 92123

 

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

 

Cubic Corporation

Attn: ** **Vice President, Human Resources

9333Balboa Avenue

San Diego, California 92123

 

The Plan Sponsor’s and PlanAdministrator’s telephone number is (858)277-6780. The Plan Administrator is the named fiduciary charged with theresponsibility for administering the Plan.

 

**SECTION14.**       STATEMENT OF ERISA RIGHTS.

 

Participants in this Plan(which is a welfare benefit plan sponsored by Cubic Corporation) are entitledto certain rights and protections under ERISA. If you are a Participant, youare considered a participant in the Plan for the purposes of this Section 14and, under ERISA, you are entitled to:

 

**ReceiveInformation About Your Plan and Benefits**

 

**(a)****          **Examine, without charge, at the PlanAdministrator’s office and at other specified locations, such as worksites, alldocuments governing the Plan and a copy of the latest annual report (Form 5500Series), if applicable, filed by the Plan with the U.S. Department of Labor andavailable at the Public Disclosure Room of the Employee Benefits SecurityAdministration;

 

**(b)****          **Obtain, upon written request to the PlanAdministrator, copies of documents governing the operation of the Plan andcopies of the latest annual report (Form 5500 Series), if applicable, and anupdated (as necessary) Summary Plan Description. The Administrator may make areasonable charge for the copies; and

 

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

 

**Prudent Actions By PlanFiduciaries**

 

In addition to creatingrights for Plan participants, ERISA imposes duties upon the people who areresponsible for the operation of the employee benefit plan. The people whooperate the Plan, called “fiduciaries” of the Plan, have a duty to do soprudently and in the interest of you and other Plan participants andbeneficiaries. No one, including your employer, your union or any other person,may fire you or otherwise discriminate against you in any way to prevent youfrom obtaining a Plan benefit or exercising your rights under ERISA.

 

**Enforce Your Rights**

 

If your claim for a Planbenefit is denied or ignored, in whole or in part, you have a right to know whythis was done, to obtain copies of documents relating to the decision withoutcharge, and to appeal any denial, all within certain time schedules.

 

Under ERISA, there are stepsyou can take to enforce the above rights. For instance, if you request a copyof Plan documents or the latest annual report from the Plan, if applicable, anddo not receive them within 30 days, you may file suit in a Federal court. Insuch a case, the court may require the Plan Administrator to provide thematerials and pay you up to $110 a day until you receive the materials, unlessthe materials were not sent because of reasons beyond the control of the PlanAdministrator.

 

If you have a claim forbenefits which is denied or ignored, in whole or in part, you may sue orexercise such other rights as are described in this Plan.

 

If you are discriminated againstfor asserting 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 whoshould pay court costs and legal fees. If you are successful, the court mayorder the person you have sued to pay these costs and fees. If you lose, thecourt may order you to pay these costs and fees, for example, if it finds yourclaim is frivolous.

 

**Assistance With Your Questions**

 

If you have any questionsabout the Plan, you should contact the Plan Administrator. If you have anyquestions about this statement or about your rights under ERISA, or if you needassistance in obtaining documents from the Plan Administrator, you shouldcontact the nearest office of the Employee Benefits Security Administration,U.S. Department of Labor, listed in your telephone directory or the Division ofTechnical Assistance and Inquiries, Employee Benefits Security Administration,U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210.You may also obtain certain publications about your rights and responsibilitiesunder ERISA by calling the publications hotline of the Employee BenefitsSecurity Administration.

 

**SECTION 15.**           GENERALPROVISIONS.

 

**(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 postage prepaid, andaddressed to the parties, in the case of the Company, at the address set forthin Section 10(a) and, in the case of a Participant, at the address as set forthin the Company’s employment file maintained for the Participant as 

 

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previously furnished by the Participant or suchother address as a party may request by notifying the other in writing.

 

**(b)****          ****Transfer and Assignment.**The rights and obligations of a Participantunder this Plan may not be transferred or assigned without the prior writtenconsent of the Company. This Plan shall be binding upon any surviving entityresulting from a Change in Control and upon any other person who is a successorby merger, acquisition, consolidation or otherwise to the business formerlycarried on by the Company without regard to whether or not such person orentity actively assumes the obligations hereunder.

 

**(c)****          ****Waiver.**Any Party’s failure to enforce any provisionor provisions of this Plan shall not in any way be construed as a waiver of anysuch provision or provisions, nor prevent any Party from thereafter enforcingeach and every other provision of this Plan. The rights granted the Partiesherein are cumulative and shall not constitute a waiver of any Party’s right toassert all other legal remedies available to it under the circumstances.

 

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

 

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

 

**SECTION16.**           EXECUTION.

 

Torecord the adoption of the Plan as set forth herein, Cubic Corporation hascaused its duly authorized officer to execute the same as of the EffectiveDate.

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

 

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**EXHIBIT A**

 

**CUBIC CORPORATION**

**TRANSITION PROTECTION PLANPARTICIPATION NOTICE**

 

**To**:

 

**Date**:

 

Cubic Corporation (the “***Company***”) has adoptedthe Cubic Corporation Transition Protection Plan (the “***Plan***”). The Companyis providing you with this Participation Notice to inform you that, given yourposition at the Company, you qualify as a participant in the Plan. A copy ofthe Plan document, which also constitutes a summary plan description, isattached to this Participation Notice. The terms and conditions of yourparticipation in the Plan are as set forth in the Plan, and in the event of anyconflict between this Participation Notice and the Plan, the terms of the Planshall prevail. Subject to the provisions of the Plan, the details of your Planbenefits, as described in Section 4 of the Plan, are as follows:

 

**Cash Severance Benefit:**               months.

 

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

 

**OutplacementServices: **Up to $       .

 

Please retain a copy of thisParticipation Notice, along with the Plan document, for your records.

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

 

The undersigned Participant herebyacknowledges receipt of the foregoing Participation Notice and the Plan.

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

 

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**EXHIBIT B**

 

**RELEASE AGREEMENT**

 

**I understand and agree completely to the terms set forth in the CubicCorporation Transition Protection Plan (the “*Plan*”).I understand that this release and waiver (the “*Release*”), together with the Plan, constitutes the complete,final and exclusive embodiment of the entire agreement between the Company andme with regard to the subject matter hereof. I am not relying on any promise orrepresentation by the Company that is not expressly stated herein.**

 

Inconsideration of benefits I will receive under the Plan, I hereby generally andcompletely release the Company and its directors, officers, employees,shareholders, members, partners, agents, attorneys, predecessors, successors,parent and subsidiary entities, insurers, affiliates, and assigns from any andall claims, liabilities and obligations, both known and unknown, that arise outof or are in any way related to events, acts, conduct, or omissions occurringprior 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 with theCompany or the termination of that employment; (2) all claims related to mycompensation 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).

 

IfI am over the age of 40 years at the time of an Covered Termination (as thatterm is defined in the Plan), I acknowledge that I am knowingly and voluntarilywaiving and releasing any rights I may have under the ADEA. I also acknowledgethat the consideration given under the Release for the waiver and release inthe preceding paragraph hereof is in addition to anything of value to which Iwas already entitled. I further acknowledge that I have been advised by thiswriting, as required by the ADEA, that:  (A)my waiver and release do not apply to any rights or claims that may arise on orafter the date I execute this Release; (B) I should consult with an attorneyprior to executing this Release;(C) I have twenty-one (21) days to consider this Release(although I may choose to voluntarily execute this Release earlier); (D) I have seven (7)days following my execution of this Release to revoke the Release; and (E) this Releaseshall not be effective until the date upon which the revocation period hasexpired, which shall be the eighth (8th) day after I execute thisRelease.

 

** **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.

 

Irepresent that I have not filed any claims against the Company, and agree that,except as such waiver may be prohibited by statute, I will not file any claimagainst the Company or seek any compensation for any claim other than thepayments and benefits referenced herein. I agree to indemnify and hold theCompany harmless from and against any and all loss, cost, and expense,including, but not limited to court costs and attorney’s fees, arising from orin connection with any action which may be commenced, prosecuted, or threatenedby me or for my benefit, upon my initiative, or with my aid or approval,contrary to the provisions of this Release.

 

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Iacknowledge that I have read and understand Section 1542 of the CaliforniaCivil Code which reads as follows:  **“A general release does not extend to claims which the creditor doesnot know or suspect to exist in his favor at the time of executing the release,which if known by him must have materially affected his settlement with thedebtor.”**  I hereby expresslywaive and relinquish all rights and benefits under that section and any law ofany jurisdiction of similar effect with respect to my release of any claims Imay have against the Company, its affiliates, and the entities and personsspecified above.

 

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

 

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