Exhibit 10.2


 


SEPARATION AGREEMENT AND RELEASE


 


This Separation Agreement and Release (“Agreement”) is made by and
between Francis P. Barton (“Employee”) and UTStarcom, Inc. (the “Company”)
(collectively referred to as the “Parties” or individually referred to as a
“Party”).


 


RECITALS


 


WHEREAS, Employee was employed by the Company pursuant to the terms and
conditions set forth in his offer letter signed July 25, 2005 (the “Offer
Letter”); and


 


WHEREAS, Employee signed an Employment, Confidential Information and
Invention Assignment Agreement  with
the Company on August 17, 2005 (the “Confidentiality Agreement”);


 


WHEREAS, Employee entered into the UTStarcom, Inc. Indemnification
Agreement  with the Company on September 6,
2005 (the “Indemnity Agreement”);


 


WHEREAS, Employee entered into the UTStarcom, Inc. Retention
Agreement  with the Company on November 30,
2007 (the “Retention Agreement”) granting Employee that certain retention
incentive represented by some of the Equity Awards (as defined below), which
vested as to 25% of the award on November 30, 2007 and is scheduled to
vest as to 25% of the award annually on each November 30 thereafter,
subject to the terms and conditions of the Retention Agreement (the “Retention
Incentive”);


 


WHEREAS, Employee entered into the UTStarcom, Inc. Amended and
Restated Change of Control/Involuntary Termination Severance Agreement  with the Company on January 30, 2008
(the “Severance Agreement”);


 


WHEREAS, the Company has granted Employee the equity
awards set forth in Schedule A (the “Equity Awards”) to this Agreement pursuant
to either the Company’s 1997 Stock Plan or 2006 Equity Incentive Plan
(collectively, the “Plans”) and memorialized in agreements between the Company
and Employee (the “Equity Award Agreements”). ;


 


WHEREAS, Employee is resigning from (1) his seat on the Company’s
Board of Directors, and (2) his employment as Executive Vice President and
Chief Financial Officer with the Company with both resignations effective August 31,
2008 (the “Resignation Date”); and


 


WHEREAS, the Parties wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions, and demands that the
Employee may have against the Company and any of the Releasees as defined
below, including, but not limited to, any and all claims arising out of or in
any way related to Employee’s employment with or separation from the Company;


 

















 


NOW, THEREFORE, in consideration of the mutual promises made herein,
the Company and Employee hereby agree as follows:


 


COVENANTS


 


1.                                       Consideration.


 


a.                                       Resignation.
Employee hereby tenders notice to the Company of his voluntary resignation from
employment with the Company, and from any and all of the Company’s subsidiaries
or affiliates, and from his seat on the Company’s Board of Directors, and from
any and all Boards of Directors of the Company’s subsidiaries or affiliates,
effective August 31, 2008.


 


b.                                      Payment.
The Company agrees to pay Employee the lump sum of three hundred eighty
thousand dollars ($380,000), less applicable withholding. This payment will be
made to Employee within ten (10) business days after the Effective Date of
this Agreement.


 


c.                                       Retention
Incentive. As further consideration for this Agreement, the Retention
Incentive will, on the Resignation Date, vest as to the portion of the award
that would have otherwise vested on November 30, 2008 had Employee
remained employed by the Company through that date. Accordingly, the Company
will deliver to Employee eight hundred seventy-six thousand eight hundred
forty-four (876,844) shares of unrestricted common stock in the Company. After
taking into account the acceleration of vesting of the Retention Incentive, the
Parties agree that the Equity Awards have vested as set forth on Schedule A and
Employee acknowledges that he will have vested in no more and this represents
all of the equity to which he is entitled to purchase and/or receive from the
Company. The vested Equity Awards and any shares of Common Stock Employee may
acquire pursuant thereto shall continue to be governed by the terms and
conditions of the Plans and Equity Award Agreements.


 


d.                                      Extension.
As part of the consideration for this Agreement, any of Employee’s options to
purchase shares of Company common stock as set forth in Schedule A (the
“Options”) will, to the extent vested as of the Resignation Date, remain
exercisable until August 30, 2009, or earlier as set forth in Section 12(c) of
the 1997 Stock Plan and Section 14(c) of the Equity Incentive Plan.
Employee acknowledges and agrees that these amendments may disqualify any
Options that currently qualify as incentive stock options under Section 422
of the Internal Revenue Code of 1986, as amended (the “Code”) and result in any
such Options becoming nonstatutory stock options. Employee further understands
that in any event an incentive stock option converts into a nonstatutory stock
option three months and one day after the Resignation Date.


 


2.                                       Accrued
Wages and Vacation; Expenses. The Company will pay Employee all of
Employee’s accrued and unused vacation through the Resignation Date. Following
the timely submission of proper expense reports by Employee, the Company shall
reimburse Employee for all documented expenses reasonably and necessarily
incurred by Employee in connection with the business of the Company prior to
the Resignation Date. These payments shall be made promptly upon termination
and within the period of time mandated by law.


 


3.                                       Benefits.
Employee’s health insurance benefits shall cease on August 31, 2008, subject to
Employee’s right to continue his health insurance under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended. Employee’s participation
in all benefits and


 

















 


incidents of employment, including, but not limited to,
vesting in Equity Awards and the accrual of bonuses, vacation, and paid time
off, will cease as of the Resignation Date.


 


4.                                       Payment of Salary and Receipt of All Benefits. Employee acknowledges and represents that, other
than the payments and other consideration set forth above in this Agreement,
the Company has paid or provided all salary, wages, bonuses, accrued
vacation/paid time off, leave, housing allowances, relocation costs, interest,
severance, outplacement costs, fees, reimbursable expenses, commissions, stock,
stock options, vesting, and any and all other benefits and compensation due to
Employee, including but not limited to any and all benefits under the Offer
Letter, the Retention Agreement, and the Severance Agreement. Employee further
acknowledges and represents that he has received any leave to which he was
entitled or which he requested, if any, under the California Family Rights Act
and/or the Family Medical Leave Act, and that he did not sustain any workplace
injury, during his employment with the Company.


 


5.                                       Release of Claims. Employee agrees that other than the Company’s
ongoing obligations to Employee as set forth in the Indemnity Agreement, which
is not affected by this Agreement, the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee by the
Company and its current and former officers, directors, employees, agents,
investors, attorneys, shareholders, administrators, affiliates, benefit plans,
plan administrators, insurers, divisions, and subsidiaries, and predecessor and
successor corporations and assigns (collectively, the “Releasees”). Employee,
on his own behalf and on behalf of his respective heirs, family members,
executors, agents, and assigns, hereby and forever releases the Releasees from,
and agrees not to sue concerning, or in any manner to institute, prosecute, or
pursue, any claim, complaint, charge, duty, obligation, or cause of action
relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that Employee may possess against any of the Releasees
arising from any omissions, acts, facts, or damages that have occurred up until
and including the Effective Date of this Agreement, including, without
limitation:


 


a.                                       any and all
claims relating to or arising from Employee’s employment relationship with the
Company and the termination of that relationship;


 


b.                                      any
and all claims relating to, or arising from, Employee’s right to purchase, or
actual purchase of shares of stock of the Company, including, without
limitation, any claims for fraud, misrepresentation, breach of fiduciary duty,
breach of duty under applicable state corporate law, and securities fraud under
any state or federal law;


 


c.                                       any
and all claims for wrongful discharge of employment; termination in violation
of public policy; discrimination; harassment; retaliation; breach of contract,
both express and implied; breach of covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; fraud; negligent or intentional
misrepresentation; negligent or intentional interference with contract or
prospective economic advantage; unfair business practices; defamation; libel;
slander; negligence; personal injury; assault; battery; invasion of privacy;
false imprisonment; conversion; and disability benefits;


 


d.                                      any
and all claims for violation of any federal, state, or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964;
the Civil Rights Act of 1991; the Rehabilitation Act of 1973; the Americans
with Disabilities Act of 1990; the Equal Pay Act; the Fair Labor Standards Act,
except as prohibited by law; the Fair Credit Reporting Act; the Age


 

















 


Discrimination in Employment Act of 1967; the Older Workers Benefit
Protection Act;  the Employee
Retirement Income Security Act of 1974; the Worker Adjustment and Retraining
Notification Act; the Family and Medical Leave Act, except as prohibited by
law; the Sarbanes-Oxley Act of 2002; the California Family Rights Act; the
California Labor Code, except as prohibited by law; the California Workers’
Compensation Act, except as prohibited by law; and the California Fair
Employment and Housing Act;


 


e.                                       any and all
claims for violation of the federal or any state constitution;


 


f.                                         any and all claims
arising out of any other laws and regulations relating to employment or
employment discrimination;


 


g.                                      any
claim for any loss, cost, damage, or expense arising out of any dispute over
the non-withholding or other tax treatment of any of the proceeds received by
Employee as a result of this Agreement; and


 


h.                                      any and all
claims for attorneys’ fees and costs.


 


Employee agrees that the release set forth in this section shall be and
remain in effect in all respects as a complete general release as to the matters
released. This release does not extend to any obligations incurred under this
Agreement. This release does not release claims that cannot be released as a
matter of law, including, but not limited to: 
(1) Employee’s right to file a charge with or participate in a
charge by the Equal Employment Opportunity Commission, or any other local,
state, or federal administrative body or government agency that is authorized
to enforce or administer laws related to employment, against the Company (with
the understanding that any such filing or participation does not give Employee
the right to recover any monetary damages against the Company; Employee’s
release of claims herein bars Employee from recovering such monetary relief
from the Company); (2) claims under Division 3, Article 2 of the
California Labor Code (which includes California Labor Code section 2802
regarding indemnity for necessary expenditures or losses by employee); and (3) claims
prohibited from release as set forth in California Labor Code section 206.5
(specifically “any claim or right on account of wages due, or to become due, or
made as an advance on wages to be earned, unless payment of such wages has been
made”).


 


6.                                       Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges that he is waiving and
releasing any rights he may have under the Age Discrimination in Employment Act
of 1967 (“ADEA”), and that this waiver and release is knowing and voluntary.
Employee agrees that this waiver and release does not apply to any rights or claims
that may arise under the ADEA after the Effective Date of this Agreement.
Employee acknowledges that the consideration given for this waiver and release
is in addition to anything of value to which Employee was already entitled.
Employee further acknowledges that he has been advised by this writing that: (a) he
should consult with an attorney prior to executing this Agreement; (b) he
has twenty-one (21) days within which to consider this Agreement; (c) he
has seven (7) days following his execution of this Agreement to revoke
this Agreement; (d) this Agreement shall not be effective until after the
revocation period has expired; and (e) nothing in this Agreement prevents
or precludes Employee from challenging or seeking a determination in good faith
of the validity of this waiver under the ADEA, nor does it impose any condition
precedent, penalties, or costs for doing so, unless specifically authorized by
federal law. In the event Employee signs this Agreement and returns it to the
Company in less than the 21-day period identified above, Employee hereby
acknowledges that


 

















 


he has freely and voluntarily chosen to waive the
time period allotted for considering this Agreement.


 


7.                                       California Civil Code Section 1542. Employee acknowledges that he has been advised
to consult with legal counsel and is familiar with the provisions of California
Civil Code Section 1542, a statute that otherwise prohibits the release of
unknown claims, which provides as follows:


 


A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.


 


Employee, being aware of said code section and with the exceptions as
set forth herein, agrees to expressly waive any rights he may have thereunder,
as well as under any other statute or common law principles of similar effect.


 


8.                                       No Pending or Future Lawsuits. Employee represents that he has no lawsuits, claims,
or actions pending in his name, or on behalf of any other person or entity,
against the Company or any of the other Releasees. Employee also represents
that he does not intend to bring any claims on his own behalf or on behalf of
any other person or entity against the Company or any of the other Releasees.


 


9.                                       Application for Employment. Employee understands and agrees that, as a
condition of this Agreement, Employee shall not be entitled to any employment
with the Company, and Employee hereby waives any right, or alleged right, of
employment or re-employment with the Company. Employee further agrees not to
apply for employment with the Company.


 


10.                                 Trade Secrets and Confidential Information/Company
Property. Employee reaffirms and
agrees to observe and abide by the terms of the Confidentiality Agreement,
specifically including the provisions therein regarding nondisclosure of the
Company’s trade secrets and confidential and proprietary information, and
non-solicitation of Company employees. Employee’s signature below constitutes
his certification under penalty of perjury that he has returned all documents
and other items provided to Employee by the Company, developed or obtained by
Employee in connection with his employment with the Company, or otherwise
belonging to the Company.


 


11.                                 No Cooperation Adverse To Releasees. Employee further agrees that he will not
knowingly encourage, counsel, or assist any attorneys or their clients in the
presentation or prosecution of any disputes, differences, grievances, claims,
charges, or complaints by any third party against any of the Releasees, unless
under a subpoena or other court order to do so or as related directly to the
ADEA waiver in this Agreement. Employee agrees both to immediately notify the
Company upon receipt of any such subpoena or court order, and to furnish,
within three (3) business days of its receipt, a copy of such subpoena or
other court order. If approached by anyone for counsel or assistance in the
presentation or prosecution of any disputes, differences, grievances, claims,
charges, or complaints against any of the Releasees, Employee shall state no
more than that he cannot provide counsel or assistance.


 

















 


12.                                 Cooperation With The
Company. In the event of any
litigation, threat of litigation, or investigation by any local, state or
federal administrative agency, Employee agrees that he will cooperate fully and
make himself reasonably available to the Company and/or its counsel in the
event that the Company determines in good faith that Employee’s assistance
would be helpful to the Company. If Employee is called on to provide such
cooperation, the Company will reimburse Employee for reasonable out-of-pocket
expenses.


 


13.                                 Mutual Non-Disparagement. Employee agrees to refrain from any disparaging
statements about the Company or any of the other Releasees including, without
limitation, the business, products, intellectual property, financial standing,
future, or employment/compensation/benefit practices of the Company. The
Company agrees to refrain from any disparaging statements about Employee, provided that Employee understands
that the Company’s obligations under this Paragraph extend only to the
Company’s current executive officers and members of its Board of Directors and
only for so long as each officer or member is an employee or Director of the
Company. Employee shall direct any inquiries by potential future employers to
the Company’s Chairman of the Board.


 


14.                                 Breach. Employee acknowledges and agrees that any material breach of this Agreement,
unless such breach constitutes a legal action by Employee challenging or
seeking a determination in good faith of the validity of the waiver herein
under the ADEA, or of any provision of the Confidentiality Agreement shall
entitle the Company immediately to recover and/or cease providing the
consideration provided to Employee under this Agreement, except as provided by
law.


 


15.                                 No Admission of Liability. Employee understands and acknowledges that this
Agreement constitutes a compromise and settlement of any and all actual or
potential disputed claims by Employee. No action taken by the Company hereto,
either previously or in connection with this Agreement, shall be deemed or
construed to be (a) an admission of the truth or falsity of any actual or
potential claims or (b) an acknowledgment or admission by the Company of
any fault or liability whatsoever to Employee or to any third party.


 


16.                                 Non-Solicitation. Employee agrees that for a period of twelve (12) months immediately
following the Effective Date of this Agreement, Employee shall not directly or
indirectly solicit any of the Company’s employees to leave their employment at
the Company.


 


17.                                 Costs. The Parties shall each bear their own costs, attorneys’ fees, and other
fees incurred in connection with the preparation of this Agreement.


 


18.                                 ARBITRATION. THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OF
THIS AGREEMENT, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED,
SHALL BE SUBJECT TO ARBITRATION IN ALAMEDA COUNTY, BEFORE JUDICIAL ARBITRATION &
MEDIATION SERVICES (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES &
PROCEDURES (“JAMS RULES”). THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER
RELIEF IN SUCH DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY
ARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OF
CIVIL PROCEDURE, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL
CALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANY
CONFLICT-OF-LAW PROVISIONS OF ANY


 

















 


JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH
CALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE
ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE
ARBITRATION. THE PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION
SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION
TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAY
AN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY
SHALL SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED,
HOWEVER, THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE
PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TO
WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW
BY A JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOT
PREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL
REMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT
MATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTS
INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION
AGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER ARBITRATION
AGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATION
AGREEMENT SHALL GOVERN.


 


19.                                 Authority. The Company represents and warrants that the undersigned has the
authority to act on behalf of the Company and to bind the Company and all who
may claim through it to the terms and conditions of this Agreement. Employee
represents and warrants that he has the capacity to act on his own behalf and
on behalf of all who might claim through him to bind them to the terms and
conditions of this Agreement. Each Party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or otherwise of or
against any of the claims or causes of action released herein.


 


20.                                 No Representations. Employee represents that he has had an
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Employee has not
relied upon any representations or statements made by the Company that are not
specifically set forth in this Agreement.


 


21.                                 Severability. In the event that any provision or any portion of any provision hereof
or any surviving agreement made a part hereof becomes or is declared by a court
of competent jurisdiction or arbitrator to be illegal, unenforceable, or void,
this Agreement shall continue in full force and effect without said provision
or portion of provision.


 


22.                                 Attorneys’ Fees. Except with regard to a legal action challenging or seeking a
determination in good faith of the validity of the waiver herein under the
ADEA, in the event that either Party brings an action to enforce or effect its
rights under this Agreement, the prevailing Party shall be entitled to recover
its costs and expenses, including the costs of mediation, arbitration,
litigation, court fees, and reasonable attorneys’ fees incurred in connection
with such an action.


 


23.                                 Entire Agreement. This Agreement represents the entire agreement and understanding between
the Company and Employee concerning the subject matter of this


 

















 


Agreement and Employee’s employment with and
separation from the Company and the events leading thereto and associated
therewith, and supersedes and replaces any and all prior agreements and
understandings concerning the subject matter of this Agreement and Employee’s relationship
with the Company, with the exception of the Confidentiality
Agreement, the Indemnity Agreement and the Equity Award Agreements.


 


24.                                 No Oral Modification. This Agreement may only be amended in a writing
signed by Employee and the Company’s Chief Executive Officer.


 


25.                                 Governing Law. This Agreement shall be governed by the laws of the State of California,
without regard for choice-of-law provisions. Employee consents to personal and
exclusive jurisdiction and venue in the State of California.


 


26.                                 Effective Date. Employee has seven (7) days after he signs this Agreement to revoke
it. This Agreement will become effective on the eighth (8th) day after Employee
signed this Agreement, so long as it has been signed by the Parties and has not
been revoked (the “Effective Date”).


 


27.                                 Counterparts. This Agreement may be executed in counterparts and by facsimile, and
each counterpart and facsimile shall have the same force and effect as an
original and shall constitute an effective, binding agreement on the part of
each of the undersigned.


 


28.                                 Voluntary Execution of Agreement. Employee understands and agrees that he executed
this Agreement voluntarily, without any duress or undue influence on the part
or behalf of the Company or any third party, with the full intent of releasing
all of his claims against the Company and any of the other Releasees. Employee
acknowledges that:


 


(a)                                  he has read this Agreement;


 


(b)                                 he has been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of his own choice or has elected
not to retain legal counsel;


 


(c)                                  he understands the terms and consequences of this Agreement
and of the releases it contains; and


 


(d)                                 he is fully aware of the legal and binding effect of this
Agreement.


 

















 


IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.


 


 


	
   

  	
  Francis P. Barton, an individual

  
	
   

  	
   

  
	
  Dated: August 28, 2008

  	
  /s/ Francis P. Barton

  
	
   

  	
  Francis P. Barton

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  UTStarcom, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated: August 28, 2008

  	
  By

  	
  /s/ Mark Green

  
	
   

  	
   

  	
  Mark Green

  
	
   

  	
   

  	
  Senior Vice President, Worldwide Human

  Resources and Real Estate

  



 

















 


SCHEDULE A


 


EQUITY AWARDS


 


	
  Grant Number

  	
   

  	
  Grant Date

  	
   

  	
  Type of Award

  	
   

  	
  Number of

  Shares

  	
   

  	
  Exercise/

  Purchase Price

  	
   

  	
  Total Shares

  Vested

  	
   

  
	
  9712492

  	
   

  	
  8/1/2005

  	
   

  	
  Option

  	
   

  	
  400,000

  	
   

  	
  $

  	
  8.82

  	
   

  	
  300,000

  	
   

  
	
  C09661

  	
   

  	
  8/1/2005

  	
   

  	
  Restricted Stock

  	
   

  	
  100,000

  	
   

  	
  $

  	
  0.001250

  	
   

  	
  75,000

  	
   

  
	
  9715987

  	
   

  	
  2/28/2006

  	
   

  	
  Option

  	
   

  	
  92,000

  	
   

  	
  $

  	
  6.25

  	
   

  	
  92,000

  	
   

  
	
  06000138

  	
   

  	
  11/30/2007

  	
   

  	
  Restricted Stock

  	
   

  	
  46,000

  	
   

  	
  $

  	
  0.00

  	
   

  	
  46,000

  	
   

  
	
  06000139

  	
   

  	
  11/30/2007

  	
   

  	
  RSU

  	
   

  	
  44,781

  	
   

  	
  $

  	
  0.00

  	
   

  	
  11,195

  	
   

  
	
  06000140

  	
   

  	
  11/30/2007

  	
   

  	
  RSU

  	
   

  	
  67,172

  	
   

  	
  $

  	
  0.00

  	
   

  	
  33,586

  	
   

  
	
  06000144

  	
   

  	
  11/30/2007

  	
   

  	
  RSU

  	
   

  	
  689,655

  	
   

  	
  $

  	
  0.00

  	
   

  	
  689,655

  	
   

  
	
  06000145

  	
   

  	
  11/30/2007

  	
   

  	
  Restricted Stock

  	
   

  	
  300,000

  	
   

  	
  $

  	
  0.00

  	
   

  	
  172,414 127,586

  	
  *

  
	
  06000146

  	
   

  	
  11/30/2007

  	
   

  	
  RSU

  	
   

  	
  165,657

  	
   

  	
  $

  	
  0.00

  	
   

  	
  165,657

  	
  *

  
	
  06000147

  	
   

  	
  11/30/2007

  	
   

  	
  Restricted Stock

  	
   

  	
  254,000

  	
   

  	
  $

  	
  0.00

  	
   

  	
  254,000

  	
  *

  
	
  06001140

  	
   

  	
  1/31/2008

  	
   

  	
  RSU

  	
   

  	
  722,022

  	
   

  	
  $

  	
  0.00

  	
   

  	
  329,601

  	
  *

  
	
  06001141

  	
   

  	
  1/31/2008

  	
   

  	
  Restricted Stock

  	
   

  	
  300,000

  	
   

  	
  $

  	
  0.00

  	
   

  	
  0

  	
   

  
	
  06001142

  	
   

  	
  1/31/2008

  	
   

  	
  Restricted Stock

  	
   

  	
  300,000

  	
   

  	
  $

  	
  0.00

  	
   

  	
  0

  	
   

  
	
  06001143

  	
   

  	
  1/31/2008

  	
   

  	
  RSU

  	
   

  	
  115,000

  	
   

  	
  $

  	
  0.00

  	
   

  	
  0

  	
   

  
	
  06001148

  	
   

  	
  2/29/2008

  	
   

  	
  RSU

  	
   

  	
  61,667

  	
   

  	
  $

  	
  0.00

  	
   

  	
  0

  	
   

  
	
  06001149

  	
   

  	
  2/29/2008

  	
   

  	
  RSU

  	
   

  	
  123,333

  	
   

  	
  $

  	
  0.00

  	
   

  	
  0

  	
   

  



 






*
Includes acceleration of vesting of the Retention Incentive