taxable benefits, (ii) welfare benefits within the meaning of Treas. Reg. Sec. 1.409A-1(a)(5),(iii) short-term deferrals under Treas. Reg. Sec. 1.409A-1(b)(4), or (iv) payments under aseparation pay plan within the meaning of Treas. Reg. Sec. 1.409A-1(b)(9).     H. Certain capitalized terms that are used in this Agreement are defined in Exhibit A, whichis an integral part of this Agreement.     Accordingly, the Company and the Executive each intending to be legally bound, agree asfollows:     1. Term of Agreement. This Agreement is effective immediately and will continue ineffect only so long as the Executive remains employed by the Company. This Agreement willautomatically terminate upon the Executive’s Termination of Employment with the Company, except fora Termination of Employment contemplated by Section 2, in which case this Agreement will remain ineffect until the date on which the Company’s obligations to the Executive arising under or inconnection with this Agreement have been satisfied in full. Notwithstanding the foregoing, thisAgreement shall terminate immediately (and no benefit will be payable under this Agreement) in theevent, prior to a Change in Control, and in a transaction that is not a Change in Control, eitherthe Company ceases to be an Affiliate of the Parent Corporation or sells all or substantially allof its assets, in one or a series of related transactions, to any Person.     2. Benefits upon a Change in Control Termination. The Executive will become entitledto the benefits described in this Section 2 on account of a Termination of Employment if and onlyif (i) the Company terminates the Executive’s employment for any reason other than for Cause, orthe Executive terminates the Executive’s employment with the Company for Good Reason, and (ii) theTermination of Employment occurs either within the period beginning on the date of a Change inControl and ending on the last day of the first full calendar month following the first anniversarydate of the Change in Control or prior to a Change in Control if the Executive’s Termination ofEmployment was either a condition of the Change in Control or was at the request or insistence of aPerson related to the Change in Control.     (a) Cash Payment. Subject to Section 2(e), not more than 10 days following theDate of Termination, or, if later, not more than 10 days following the date of the Change inControl, the Company will make a lump-sum cash payment to the Executive in an amount equalto 100% of the sum of (i) the Executive’s Base Pay, plus (ii) 100% of the Executive’s targetbonus established for the year during which the Change in Control occurs.     (b) Definitions. For purposes of this section, the “ContinuationPeriod” is the period beginning on the Executive’s Date of Termination and ending on (x)the last day of the 12th month that begins after the Executive’s Date of Termination or, ifearlier, (y) the date after the Executive’s Date of Termination on which the Executive firstbecomes eligible to participate as an employee in a plan of another employer providing grouphealth and dental benefits to the Executive and the Executive’s eligible family members anddependents, which plan does not contain any exclusion or limitation with respect to anypre-existing condition of the Executive or any eligible family member or dependent who wouldotherwise be covered under the Company’s plan but for this clause (y).
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     (c) Group Health Plans. If the Executive elects COBRA continuation coverageunder the Company’s group health and/or dental plans, then for each month of theContinuation Period, the Company will pay the Executive an amount equal to the excess of (i)the portion of the monthly cost for the Executive’s coverage under the Company’s grouphealth and/or dental plans that was borne by the Company immediately prior to theExecutive’s Termination of Employment or, if greater, immediately prior to the Change inControl (subject to the rule for coverage changes discussed below) over (ii) the portion ofthe monthly cost for the Executive’s coverage under the Company’s group health and/or dentalplans that is borne by the Company during the Continuation Period. The Executive’s coveragewill be deemed to include any Company contribution to a Health Savings Account (or similararrangement) for the Executive. If the level of the Executive’s coverage changes during theContinuation Period, as, for example, from single to family coverage or to no coverage, theamount which the Company shall pay will be determined as if the new coverage level had beenthe level of coverage in effect immediately prior to the Termination of Employment or Changein Control, as the case may be. The Executive shall be entitled to elect health carecontinuation coverage under the Company’s group health and/or dental plans for up to 12months beyond the end of the 18-month COBRA period if he or she has not become eligible toparticipate as an employee in a plan of another employer providing group health and dentalbenefits to the Executive and the Executive’s eligible family members and dependents, whichplan does not contain any exclusion or limitation with respect to any pre-existing conditionof the Executive or any eligible family member or dependent who would otherwise be coveredunder the Company’s plan but for this clause. If COBRA continuation coverage is notavailable to the Executive during any portion of the Continuation Period (other than byreason of his or her failure to elect COBRA continuation coverage or to pay the requiredpremiums for such coverage), the Company will provide comparable health benefits pursuant toan alternative arrangement, such as an individual health insurance contract, and suchalternative benefits will be treated as part of the Company’s health and/or dental plan.Any reimbursement made under this Section 2(c) shall be made on or before the last day ofthe calendar year following the calendar year in which any continuation coverage payment wasincurred.     (d) Life Insurance. In addition, during each month of the Continuation Period,the Executive shall be entitled to receive life insurance coverage substantially equivalentto the coverage Executive had on the day immediately prior to his or her Termination ofEmployment, including coverage then in effect for Executive’s spouse and dependents.Executive shall be required to pay no more for such life insurance than Executive paid as anactive employee immediately before his or her Termination of Employment. In order tocontinue life insurance coverage, Executive must timely elect continuation or theportability option available under the Company’s group life insurance policy or policies andpay the full premium for such coverage following Termination of Employment. The Companywill reimburse Executive at least quarterly for the amount by which such life insurancepremium exceeds the amount Executive paid for such coverage as an active employeeimmediately prior to his or her Termination of Employment, and in all events reimbursementshall be made on or before the last day of the calendar year following the calendar year inwhich the premium was incurred.
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     (e) Six Month Suspension for Specified Key Employees. Notwithstanding theforegoing, if, at the time of his or her Termination of Employment, the Executive is aSpecified Employee, then to the extent any payment under Section 2 is determined by theCompany to be deferred compensation subject to the requirements of Section 409A of the Code,payment of such deferred compensation shall be suspended and not made until the first day ofthe month next following the end of the six (6) month period following the Executive’sTermination of Employment, or, if earlier, upon the Executive’s death.     3. Indemnification. Following a Change in Control, the Company will indemnify andadvance expenses to the Executive for damages, costs and expenses (including, without limitation,judgments, fines, penalties, settlements and reasonable fees and expenses of the Executive’scounsel) (the “Expenses”) incurred in connection with all matters, events and transactionsrelating to the Executive’s service to or status with the Company or any other corporation,employee benefit plan or other Person for which the Executive served at the request of the Companyto the extent that the Company would have been required to do so under applicable law, corporatearticles, bylaws or agreements or instruments of any nature with or covering the Executive,including any indemnification agreement between Parent Corporation and the Executive, as in effectimmediately prior to the Change in Control and to any further extent as may be determined or agreedupon following the Change in Control.     4. Miscellaneous.     (a) Successors. The Parent Corporation must seek to have any Successor, byagreement in form and substance satisfactory to the Executive, assent to the fulfillment bysuch Successor of the Company’s obligations under this Agreement. Failure of the Company toobtain such assent at least three business days prior to the time a Person becomes aSuccessor (or where the Parent Corporation does not have at least three business days’advance notice that a Person may become a Successor, within one business day after havingnotice that such Person may become or has become a Successor) will constitute Good Reasonfor termination by the Executive of the Executive’s employment. The date on which any suchsuccession becomes effective will be deemed the Date of Termination, and Notice ofTermination will be deemed to have been given on that date. A Successor has no rights,authority or power with respect to this Agreement prior to a Change in Control.     (b) Binding Agreement. This Agreement inures to the benefit of, and isenforceable by, the Executive, the Executive’s personal and legal representatives,executors, administrators, successors, heirs, distributees, devisees and legatees. If theExecutive dies while employed by the Company or while any amount would still be payable tothe Executive under this Agreement if the Executive had continued to live, all such amounts,unless otherwise provided in this Agreement, will be paid in accordance with the terms ofthis Agreement to the Executive’s devisee, legatee or other designee or, if there be no suchdesignee, to the Executive’s estate.     (c) No Mitigation. The Executive will not be required to mitigate the amountof any benefits the Company becomes obligated to provide to the Executive in connection withthis Agreement by seeking other employment or otherwise. The benefits to be provided to theExecutive in connection with this Agreement may not be reduced,
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offset or subject to recovery by the Company by any benefits the Executive may receivefrom other employment or otherwise.     (d) No Setoff. The Company has no right to setoff benefits owed to theExecutive under this Agreement against amounts owed or claimed to be owed by the Executiveto the Company under this Agreement or otherwise.     (e) Taxes. All benefits to be provided to the Executive in connection withthis Agreement will be subject to required withholding of federal, state and local income,excise and employment-related taxes. The Company’s good faith determination with respect toits obligation to withhold such taxes relieves it of any obligation that such amounts shouldhave been paid to the Executive.     (f) Notices. For the purposes of this Agreement, notices and all othercommunications provided for in, or required under, this Agreement must be in writing andwill be deemed to have been duly given when personally delivered or when mailed by UnitedStates registered or certified mail, return receipt requested, postage prepaid and addressedto each party’s respective address set forth on the first page of this Agreement (providedthat all notices to the Company must be directed to the attention of the President), or tosuch other address as either party may have furnished to the other in writing in accordancewith these provisions, except that notice of change of address will be effective only uponreceipt.     (g) Disputes. If the Executive so elects, any dispute, controversy or claimarising under or in connection with Sections 2 or 3 after a Change in Control will besettled exclusively by binding arbitration administered by the American ArbitrationAssociation in Minneapolis, Minnesota in accordance with the Commercial Arbitration Rules ofthe American Arbitration Association then in effect; provided that the Executive may seekspecific performance of the Executive’s right to receive benefits until the Date ofTermination during the pendency of any dispute or controversy arising under or in connectionwith this Agreement. Judgment may be entered on the arbitrator’s award in any court havingjurisdiction. If any dispute, controversy or claim for damages arising under or inconnection with Sections 2 or 3 is settled by arbitration, the Company will pay, or ifelected by the Executive, reimburse, all fees, costs and expenses incurred by the Executiverelated to such arbitration unless the arbitrators decide that the Executive’s claim wasfrivolous or advanced by the Executive in bad faith. If the Executive does not electarbitration, the Executive may pursue all available legal remedies. The Company will pay,or if elected by the Executive, reimburse the Executive for, all fees, costs and expensesincurred by the Executive in connection with any actual, threatened or contemplatedlitigation relating to Sections 2 or 3 to which the Executive is or reasonably expects tobecome a party, whether or not initiated by the Executive, if the Executive is successful inrecovering any benefit under Sections 2 or 3 as a result of such action. The Company willnot assert in any dispute or controversy with the Executive arising under or in connectionwith this Agreement the Executive’s failure to exhaust administrative remedies.     (h) Effect of Benefits on Other Severance Plans. In the event the Executivereceives any payment under the terms of this Agreement, the Executive will not be
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eligible to receive benefits under any other severance pay plan sponsored or maintainedby the Company or agreement to which the Executive is a party.     (i) Related Agreements and Other Arrangements. This Agreement, includingExhibit A attached hereto and incorporated as an integral part of this Agreement,constitutes the entire agreement of the parties with respect to the subject matter hereof,and no agreements or representations, oral or otherwise, express or implied, with respect tothe subject matter to this Agreement have been made by any party which are not expressly setforth in this Agreement. To the extent that any provision of any Other Arrangement limits,qualifies or is inconsistent with any provision of this Agreement, then for purposes of thisAgreement, while such Other Arrangement remains in force, the provision of this Agreementwill control and such provision of such Other Arrangement will be deemed to have beensuperseded, and to be of no force or effect, as if such Other Arrangement had been formallyamended to the extent necessary to accomplish such purpose. Nothing in this Agreementprevents or limits the Executive’s continuing or future participation in any OtherArrangement for which the Executive may qualify, and nothing in this Agreement limits orotherwise affects the rights the Executive may have under any Other Arrangement. Amountsthat are vested benefits or which the Executive is otherwise entitled to receive under anyOther Arrangement at or subsequent to the Date of Termination will be payable in accordancewith such Other Arrangement.     (j) No Employment or Service Contract. Nothing in this Agreement is intendedto provide the Executive with any right to continue in the employ of the Company for anyperiod of specific duration or interfere with or otherwise restrict in any way theExecutive’s rights or the rights of the Company.     (k) Payment; Assignment. Benefits payable under this Agreement will be paidonly from the general assets of the Company. No Person has any right to or interest in anyspecific assets of the Company by reason of this Agreement. To the extent benefits underthis Agreement are not paid when due to any individual, he or she is a general unsecuredcreditor of the Company with respect to any amounts due. Benefits payable pursuant to thisAgreement and the right to receive future benefits may not be anticipated, alienated, sold,transferred, assigned, pledged, encumbered or subject to any charge.     (l) Late Payments. Benefits not paid under this Agreement when due will accrueinterest at the rate of 10% per year, or, if lesser, the maximum rate permitted underapplicable law, and shall be paid on the 5th day of the month next following the monthduring which such interest accrued.     (m) Survival. The respective obligations of, and benefits afforded to, theCompany and the Executive which by their express terms or clear intent survive terminationof the Executive’s employment with the Company or termination of this Agreement, as the casemay be, will survive termination of the Executive’s employment with the Company ortermination of this Agreement, as the case may be, and will remain in full force and effectaccording to their terms.
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     (n) Amendments; Waivers. No provision of this Agreement may be modified,waived or discharged unless such modification, waiver or discharge is agreed to in a writingsigned by the Executive, a duly authorized officer of the Company. No waiver by any partyto this Agreement at any time of any breach by another party to this Agreement of, or ofcompliance with any condition or provision of this Agreement to be performed by such partywill be deemed a waiver of similar or dissimilar provisions or conditions at the same or atany prior or subsequent time.     (o) Governing Law. This Agreement and the legal relations among the parties asto all matters, including, without limitation, matters of validity, interpretation,construction, performance and remedies, will be governed by and construed exclusively inaccordance with the internal laws of the State of Minnesota (without regard to the conflictof laws principles of any jurisdiction).     (p) Further Assurances. The parties to this Agreement agree to perform, orcause to be performed, such further acts and deeds and to execute and deliver or cause to beexecuted and delivered, such additional or supplemental documents or instruments as may bereasonably required by the other party to carry into effect the intent and purpose of thisAgreement.     (q) Interpretation. The invalidity or unenforceability of all or any part ofany provision of this Agreement will not affect the validity or enforceability of theremainder of such provision or of any other provision of this Agreement, which will remainin full force and effect.     (r) Counterparts. This Agreement may be executed in several counterparts, eachof which will be deemed to be an original, but all of which together will constitute one andthe same instrument. Facsimile execution and delivery of this Agreement shall be legal,valid and binding execution and delivery for all purposes.     (s) Severability and Judicial Modification. If any portion of this Agreementis adjudicated to be invalid or unenforceable, then a court of competent jurisdiction shallamend, modify or delete that portion thus adjudicated invalid or unenforceable. If anyportion is deemed unenforceable by virtue of its scope or limitation, the Company and theExecutive agree that a court of competent jurisdiction shall modify such provision to makeit enforceable to the fullest extent permitted by Minnesota law.     IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement effective as ofthe date first above written.           **AMERICAN MEDICAL SYSTEMS HOLDINGS, INC.**   **EXECUTIVE:**             By:                       Name:     **[Name]**    Title:                   
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**Exhibit A****DEFINITIONS**     For purposes of the Agreement, the following terms will have the meaning set forth below inthis Exhibit A unless the context clearly requires otherwise. Terms defined elsewhere in theAgreement will have the same meaning throughout the Agreement.     1. “Affiliate” means any person with whom the Company would be considered a singleemployer under Sections 414(b) and 414(c) of the Code, namely (i) any corporation at least eightypercent (80%) of whose outstanding securities ordinarily having the right to vote at elections ofdirectors is owned directly or indirectly by the Parent Corporation or (ii) any other form ofbusiness entity in which the Parent Corporation, directly or indirectly, owns eighty percent (80%)or more of the controlling interests in such entity.     2. “Base Pay” means the Executive’s annual base salary from the Company at the rate ineffect immediately prior to a Change in Control or at the time Notice of Termination is given,whichever is greater. Base Pay includes only regular cash salary and is determined before anyreduction for deferrals pursuant to any nonqualified deferred compensation plan or arrangement,qualified cash or deferred arrangement or cafeteria plan.     3. “Benefit Plan” means any     (a) employee benefit plan as defined in Section 3(3) of ERISA;     (b) cafeteria plan described in Code Section 125;     (c) plan, policy or practice providing for paid vacation, other paid time off orshort-or long-term profit sharing, bonus or incentive payments or perquisites; or     (d) stock option, stock purchase, restricted stock, phantom stock, stock appreciationright or other equity-based compensation plan with respect to the securities of anyAffiliatethat is sponsored, maintained or contributed to by the Parent Corporation or the Company for thebenefit of employees (and/or their families and dependents) generally or the Executive inparticular (and/or the Executive’s family and dependents).     4. “Board” means the board of directors of the Parent Corporation duly qualified andacting at the time in question. On and after the date of a Change in Control, any duty of theBoard in connection with this Agreement is nondelegable and any attempt by the Board to delegateany such duty is ineffective.     5. “Cause” means:     (a) the Executive’s gross misconduct that is materially and demonstrably injurious tothe Company;     (b) the Executive’s willful and continued failure to perform substantially theExecutive’s duties with the Company (other than any such failure (i) resulting from the
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Executive’s death or incapacity due to bodily injury or physical or mental illness or(ii) relating to changes in the Executive’s duties after a Change in Control that constituteGood Reason) after a written demand for substantial performance is delivered to theExecutive by the chair of the Board which specifically identifies the manner in which theExecutive has not substantially performed the Executive’s duties and provides for areasonable period of time within which the Executive may take corrective actions; or     (c) the Executive’s conviction (including a plea of nolo contendere) of willfullyengaging in illegal conduct constituting a felony or gross misdemeanor under federal orstate law which is materially and demonstrably injurious to the Company or which impairs theExecutive’s ability to perform substantially the Executive’s duties for the Company.     An act or failure to act will be considered “gross or willful” for this purpose only if done,or omitted to be done, by the Executive in bad faith and without reasonable belief that it was in,or not opposed to, the best interests of the Company. Any act, or failure to act, based uponauthority given pursuant to a resolution duly adopted by the Board (or a committee thereof) orbased upon the advice of counsel for the Company will be conclusively presumed to be done, oromitted to be done, by the Executive in good faith and in the best interests of the Company. It isalso expressly understood that the Executive’s attention to matters not directly related to thebusiness of the Company will not provide a basis for termination for Cause so long as the Board didnot expressly disapprove in writing of the Executive’s engagement in such activities either beforeor within a reasonable period of time after the Board knew or could reasonably have known that theExecutive engaged in those activities. Notwithstanding the foregoing, the Executive may not beterminated for Cause unless and until there has been delivered to the Executive a copy of aresolution duly adopted by the affirmative vote of not less than a majority of the entiremembership of the Board at a meeting of the Board called and held for the purpose (after reasonablenotice to the Executive and an opportunity for the Executive, together with the Executive’scounsel, to be heard before the Board), finding that in the good faith opinion of the Board theExecutive was guilty of the conduct set forth above in clauses (a), (b) or (c) of this definitionand specifying the particulars thereof in detail.     6. “Change in Control” shall mean a Change in Control of the Parent Corporation, asdefined in the Parent Corporation’s 2005 Stock Incentive Plan, after the date of this Agreement.     7. “Code” means the Internal Revenue Code of 1986, as amended (including, when thecontext requires, all regulations, rulings and authoritative interpretations issued thereunder).Any reference to a specific provision of the Code includes a reference to such provision as it maybe amended from time to time and to any successor provision.     8. “Company” means the Parent Corporation and any Affiliate.     9. “Date of Termination” following a Change in Control (or prior to a Change inControl if the Executive’s termination was either a condition of the Change in Control or was atthe request or insistence of any Person related to the Change in Control) means:     (a) if the Executive’s employment is to be terminated by the Executive, the datespecified in the Notice of Termination which in no event may be a date more than 15
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days after the date on which Notice of Termination is given unless the Company agree inwriting to a later date;     (b) if the Executive’s employment is to be terminated by the Company for Cause, thedate specified in the Notice of Termination; or     (c) if the Executive’s employment is terminated by reason of the Executive’s death, thedate of the Executive’s death; or     (d) if the Executive’s employment is to be terminated by the Company for any reasonother than Cause or the Executive’s death, the date specified in the Notice of Termination,which in no event may be a date earlier than 15 days after the date on which a Notice ofTermination is given, unless the Executive expressly agrees in writing to an earlier date.     In the case of termination by the Company of the Executive’s employment for Cause, if theExecutive has not previously expressly agreed in writing to the termination, then within the 30-dayperiod after the Executive’s receipt of the Notice of Termination, the Executive may notify theCompany that a dispute exists concerning the termination, in which event the Date of Terminationwill be the date set either by mutual written agreement of the parties or by the judge orarbitrators in a proceeding as provided in Section 4(g) of the Agreement. During the pendency ofany such dispute, the Executive will continue to make the Executive available to provide servicesto the Company and the Company will continue to pay the Executive the Executive’s full compensationand benefits in effect immediately prior to the date on which the Notice of Termination is given(without regard to any changes to such compensation or benefits that constitute Good Reason) anduntil the dispute is resolved in accordance with Section 4(g) of the Agreement. The Executive willbe entitled to retain the full amount of any such compensation and benefits without regard to theresolution of the dispute unless the judge or arbitrators decide(s) that the Executive’s claim of adispute was frivolous or advanced by the Executive in bad faith.     In all cases, the Executive’s Date of Termination must be consistent with the Executive’sTermination of Employment.     10. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.Any reference to a specific provision of ERISA includes a reference to such provision as it may beamended from time to time and to any successor provision.     11. “Exchange Act” means the Securities Exchange Act of 1934, as amended. Anyreference to a specific provision of the Exchange Act or to any rule or regulation thereunderincludes a reference to such provision as it may be amended from time to time and to any successorprovision.
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     12. “Good Reason” means:     (a) a material diminution in the Executive’s authority, duties or responsibilities asan executive of the Company as in effect immediately prior to the Change in Control (otherthan, if applicable, any such change directly attributable to the fact that the ParentCorporation is no longer publicly owned);     (b) a material diminution in the Executive’s base compensation as in effect immediatelyprior to the Change in Control or as thereafter increased;     (c) a material diminution in the authority, duties or responsibilities of thesupervisor to whom the Executive is required to report; or     (d) the Company requiring the Executive to be based at any office or location that ismore than fifty (50) miles further from the office or location thereof immediately precedinga Change in Control, except for required travel on the Company’s business, and then only tothe extent substantially consistent with the business travel obligations which the Executiveundertook on behalf of the Company during the 90-day period immediately preceding the Changein Control (without regard to travel related to or in anticipation of the Change in Control)or such other material, adverse change in the geographic location at which the Executive isrequired to perform his or her services.     In order to constitute Good Reason, the Executive must give written notice to the Company ofthe existence of the condition constituting Good Reason within 90 days of the initial existence ofthe condition and his or her intent to terminate employment with the Company for Good Reason;provided, however, that the Executive may not terminate his or her employment earlier than theninetieth (90th) day following the date of the Change in Control.. If the Companyremedies any event or change described in subsections (a) through (d) within 30 days of such noticefrom the Executive, such event or change shall not constitute Good Reason. The Executive’scontinued employment does not constitute consent to, or waiver of any rights arising in connectionwith, any circumstances constituting Good Reason. The Executive’s termination of employment forGood Reason as defined above will constitute Good Reason for all purposes of the Agreementnotwithstanding that the Executive may also thereby be deemed to have retired under any applicablebenefit plan, policy or practice of the Company.     13. “Notice of Termination” means a written notice given on or after the date of aChange in Control (unless the Executive’s termination before the date of the Change in Control waseither a condition of the Change in Control or was at the request or insistence of any Personrelated to the Change in Control in which case the written notice may be given before the date ofthe Change in Control) which indicates the specific termination provision in the Agreement pursuantto which the notice is given. Any purported termination by the Company or by the Executive on orafter the date of a Change in Control (or before the date of a Change in Control if the Executive’stermination was either a condition of the Change in Control or was at the request or insistence ofany Person related to the Change in Control) must be communicated by written Notice of Terminationto be effective; provided, however, that the Executive’s failure to provide Notice of Terminationwill not limit any of the Executive’s rights under the Agreement except to the extent the Companydemonstrates that it suffered material actual damages by reason of such failure.
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     14. “Other Arrangement” is any Benefit Plan or other plan, policy or practice of theCompany or any other agreement between the Executive and the Company, other than this Agreement.     15. “Parent Corporation” means American Medical Systems Holdings, Inc. and anySuccessor.     16. “Person” means any individual, corporation, partnership, group, association orother person, as such term is used in Section 13(d) or Section 14(d) of the Exchange Act, otherthan the Parent Corporation, any Affiliate or any Benefit Plan(s) sponsored by the ParentCorporation or an Affiliate.     17. “Specified Employee” The Executive is a “Specified Employee” if on thedate of his or her Termination of Employment he or she is a “key employee” (defined below), and theCompany or any Affiliate has stock that is publicly traded on an established securities marketwithin the meaning of such term under Section 409A(a)(2)(B) of the Code. For this purpose,Executive is a “key employee” during the 12-month period beginning on the April 1 immediatelyfollowing a calendar year, if he or she was employed by the Company or any Affiliate and satisfied,at any time during such preceding calendar year, the requirements of Section 416(i)(1)(A)(i), (ii)or (iii) of the Code (applied in accordance with the regulations issued thereunder and disregardingSection 416(i)(5) of the Code). The Executive will not be treated as a Specified Employee if he orshe is not required to be treated as a Specified Employee under Treasury Regulations issued underSection 409A of the Code.     18. “Successor” means any Person that succeeds to, or has the practical ability tocontrol (either immediately or solely with the passage of time), the Parent Corporation’s businessdirectly, by merger, consolidation or other form of business combination, or indirectly, bypurchase of the Parent Corporation’s outstanding securities ordinarily having the right to vote atthe election of directors or all or substantially all of its assets or otherwise.     19. “Termination of Employment” means a termination of Executive’s employment relationshipwith the Company and all Affiliates or such other change in the Executive’s employment relationshipwith the Company and all Affiliates that would be considered a “separation from service” underSection 409A of the Code. The Executive’s employment relationship will be treated as remainingintact while the Executive is on a military leave, a sick leave or other bona fide leave of absence(pursuant to which there is a reasonable expectation that the Executive will return to performservices for the Company or an Affiliate) but only if the period of such leave does not exceed six(6) months, or if longer, so long as the Executive retains a right to reemployment by the Companyor an Affiliate under applicable statute or by contract, provided, however, a twenty-nine (29)month period of absence may be substituted for such six (6) month period of absence where theExecutive’s leave is due to any medically determinable physical or mental impairment that can beexpected to result in death or can be expected to last for a continuous period of not less than six(6) months and such impairment causes the Executive to be unable to perform the duties of his orher position of employment or any substantially similar position of employment. In all cases, theExecutive’s Termination of Employment must constitute a “separation from service” under Section409A of the Code and any “separation from service” under Section 409A of the Code shall be treatedas a Termination of Employment.
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