EX-10.35






Exhibit 10.35




AVERY DENNISON CORPORATION KEY EXECUTIVE

CHANGE OF CONTROL SEVERANCE PLAN




Avery Dennison Corporation has issued this Avery Dennison Corporation Key Executive Change of
Control Severance Pay Plan to provide certain designated executives of the Company and its
affiliates and Subsidiaries with severance protection under covered circumstances.



ARTICLE I.

DEFINITIONS AND INTERPRETATIONS




Section 1.01 Definitions. Capitalized terms used in this Plan shall have
the following meanings, except as otherwise provided or as the context of the Plan otherwise
requires:



“Annual Bonus” shall have the meaning set forth in Section 3.01(a)(ii).



“Annual Salary” shall mean the highest annualized rate of base salary applicable to the
Participant during the six month period ending on the Termination Date. For the avoidance of
doubt, “base salary” shall include amounts earned in the applicable period the payment of which is
deferred to a future year but shall not include amounts earned in prior periods the payment of
which is deferred to the applicable period, and “base salary” also shall not include any bonus,
commission, incentive or retention payments, stock options or other stock related rights, or other
forms of employee benefits such as vacation, insurance, health or medical benefits, disability
benefits, workers’ compensation, supplemental unemployment benefits, and post-employment or
retirement benefits (including but not limited to compensation, pension, health, medical or life
insurance).



“Benefit Plan” shall mean any “employee benefit plan” (including any “employee benefit plan” within
the meaning of Section 3(3) of ERISA), program, arrangement or practice maintained, sponsored or
provided by the Company or any of its Subsidiaries, including those relating to compensation,
bonuses, profit-sharing, stock option, or other stock related rights or other forms of incentive or
deferred compensation, vacation benefits, insurance coverage (including any self-insured
arrangements), health or medical benefits, disability benefits, workers’ compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement benefits (including
compensation, pension, health, medical or life insurance or other benefits).



“Board” shall mean the Board of Directors of the Company.



“Cause” shall mean: (a) Participant’s commission of a crime or other act that could materially
damage the reputation of the Company; (b) Participant’s theft, misappropriation, or embezzlement of
Company property; (c) Participant’s falsification of records maintained by the Company; (d)
Participant’s substantial failure to comply with the written policies and procedures of the Company
as they may be published or revised from time-to-time; (e) Participant’s misconduct; or (f)
Participant’s substantial failure to perform the material duties of Participant’s job with the
Company, which failure is not cured within 30 days after written notice from the Company specifying
the act or acts of non-performance. Determination of Cause shall be made by the Compensation
Committee or one or more individuals designated by the Compensation Committee, in its sole and
exclusive discretion.



“Change of Control” shall mean “a change in the ownership or effective control,” or in “the
ownership of a substantial portion of the assets of” the Company, within the meaning of Section
409A, and shall include any of the following events as such concepts are interpreted under Section
409A:



(a) the date on which a majority of members of the Board is replaced during any twelve-month
period by directors whose appointment or election is not endorsed by a majority of the members of
the Board before the date of the appointment or election; or



(b) the acquisition, by any one Person, or by Persons acting as a group, or by a corporation
owned by a group of Persons that has entered into a merger, acquisition, consolidation, purchase,
stock acquisition, asset acquisition, or similar business transaction with the Company, of:



(i) ownership of stock of the Company, that, together with any stock previously held by such
Person or group, constitutes more than fifty percent (50%) of either (i) the total fair market
value or (ii) the total voting power of the stock of the Company;



(ii) ownership of stock of the Company possessing thirty percent (30%) or more of the total
voting power of the Company, during the twelve-month period ending on the date of such acquisition;
or



(iii) assets from the Company that have a total gross fair market value equal to or more than
forty percent (40%) of the total gross fair market value of all of the assets of the Company during
the twelve-month period ending on the date of such acquisition; provided, however, that any
transfer of assets to a related person as defined under Section 409A shall not constitute a Change
of Control.



“Change of Control Period” shall mean the period beginning on the date of a Change of Control and
ending on the date twenty-four (24) months following such Change of Control.



“Change of Control Severance Payment” shall have the meaning set forth in Article III.



“Code” shall mean the Internal Revenue Code of 1986, as amended in the past and the future.
Reference in this Plan to any section of the Code shall be deemed to include any amendments or
successor provisions to such section and any regulations under such section.



“Company” shall mean Avery Dennison Corporation and its Successors and assigns.



“Comparable Position” shall mean a job position with the Company or any of its Subsidiaries, or any
of their respective Successors and assigns, the principal work location of which does not satisfy
the conditions of subsection (d) of the definition of “Good Reason” and which position provides pay
and benefits that as a whole are substantially equivalent to, or better than, the Participant’s
aggregate pay and benefits with the Company at the time of the Termination of Employment when
taking into account the Participant’s base salary, target bonus opportunity, incentive pay and
equity opportunities, health and welfare benefits, severance protection, and other benefits.



“Compensation Committee” shall mean the “Compensation and Executive Personnel Committee” of the
Board.



“Disability” shall mean, when used with reference to any Participant, long term disability as
defined by the applicable long term disability plan maintained by the Company or one of its
Subsidiaries under which the Participant is covered.



“Effective Date” shall mean the date that the Compensation Committee adopts this Plan.



“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended in the past and
future, and any rules and regulations promulgated thereunder.



“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



“Excise Tax” shall have the meaning set forth in Section 3.03.



“Good Reason” shall mean “a separation from service for good reason” as set forth in Section 409A,
which shall mean that, without the express written consent of the Participant, one or more of the
following shall have occurred without being timely remedied in the manner set forth below: (a) a
material diminution in the Participant’s base compensation; (b) a material diminution in the
Participant’s authority, duties, or responsibilities; (c) a material diminution in the authority,
duties, or responsibilities of the supervisor to whom the Participant is required to report; (d) a
material change in the geographic location at which the Participant must perform the services; or
(e) any other action or inaction that constitutes a material breach by the Company of the agreement
under which the Participant provides services. The Participant shall have “Good Reason” in
connection with any or all of the above solely if (i) the Participant provides notice to the
Company of the existence of the particular condition, action or inaction which the Participant
considers to give the Participant “Good Reason” within 90 days of the initial existence of such
condition, action or inaction, and (ii) the Company shall not have remedied the condition, action
or inaction within 30 days of its receipt of the Participant’s notice. The effective date of any
termination for “Good Reason” shall be no later than 12 months after the initial existence of such
condition, action or inaction constituting “Good Reason.”



“Parachute Value” of a Payment shall mean the present value as of the date of the Change of Control
for purposes of Section 280G of the Code of the portion of such Payment that constitutes a
“parachute payment” under Section 280G(b)(2) of the Code, as determined by the accounting firm
referred to in Section 3.03 for purposes of determining whether and to what extent the Excise Tax
(as defined in Section 3.03) will apply to such Payment.



“Participant(s)” shall mean an employee (or employees) of the Company or any of its
Subsidiaries or affiliates who are from time-to-time designated as Participants in accordance with
Section 2.01 of the Plan.



“Payments” shall mean any payment or distribution in the nature of compensation (within the meaning
of Section 280G(b)(2) of the Code) to or for the benefit of the Participant, whether paid or
payable pursuant to this Plan or otherwise.



“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) of the Exchange Act, except that such term shall not include (a) the
Company or any of its Subsidiaries, (b) a trustee or other fiduciary holding securities under a
Benefit Plan of the Company or any of its affiliates, (c) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (d) a corporation owned, directly or
indirectly, by substantially all of the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.



“Plan” shall mean this Avery Dennison Corporation Key Executive Change of Control Severance Plan,
as may be amended, supplemented or modified from time to time in accordance with its terms.



“Safe Harbor Amount” shall mean three times the Participant’s “base amount,” (within the meaning of
Section 280G(b)(3) of the Code, as may be amended from time to time) less $1.



“Section 409A” shall mean Section 409A of the Code and the Department of Treasury Regulations and
other interpretive guidance issued thereunder, including, without limitation, any such regulations
or other guidance that may be issued after the Effective Date.



“Severance Multiplier” shall mean the multiplier, designated pursuant to Section 2.01(c) in
accordance with a Participant’s Tier, to be applied to a Participant’s Change of Control Severance
Payment under Section 3.01.



“Specified Employee” shall mean any Participant who, as of such Participant’s Termination Date, is
determined to be a “key employee” of the Company if, at such time, the Company has any stock that
is publicly traded on an established securities market or otherwise. For purposes of this
definition, a Participant is a “key employee” if the Participant meets the requirements of Sections
416(i)(1)(A)(i), (ii) or (iii) of the Code (applied in accordance with the Treasury Regulations
thereunder and disregarding Section 416(i)(5) of the Code) at any time during the twelve (12) month
period ending on the last day of the applicable calendar year (referred to as the “identification
date” below). If a Participant is a “key employee” as of the identification date, such Participant
shall be treated as a “key employee” for the entire twelve (12) month period beginning on the first
day of the fourth month following the identification date. For purposes of this definition, a
Participant’s compensation for the twelve (12) month period ending on an identification date shall
mean such Participant’s compensation, as determined under Treasury Regulation Section
1.415(c)-2(d)(4), from the Company for such period.



“Subsidiary” shall mean any corporation in an unbroken chain of corporations beginning with the
Company if each of the corporations other than the last corporation in the unbroken chain then owns
stock possessing 33% or more of the total combined voting power of all classes of stock in one of
the other corporations in such chain, as well as partnerships and limited liability companies, in
which the Company holds a 33% or more interest.



“Successor” shall mean a successor to all or substantially all of the business, operations or
assets of the Company or such other portion of the Company’s business as shall be determined by the
Compensation Committee.



“Termination Date” shall mean, with respect to any Participant, the actual date of the
Participant’s Termination of Employment.



“Termination of Employment” shall mean the time when the employee-employer relationship between the
Participant and the Company or any subsidiary of the Company is terminated for any reason, with or
without Cause, including, but not limited to, a termination by resignation, discharge, death,
Disability or retirement; provided that such “Termination of Employment” constitutes a “separation
from service” within the meaning of Treasury Regulation Section 1.409A-1(h).



“Termination Notice” shall mean written notice from the Company to any Participant stating that the
Participant’s employment is terminated for Cause or Disability in accordance with Section 5.07(c).



“Tier” shall mean the tier designated for each Participant by the Compensation Committee in
accordance with Section 2.01. Each Participant’s “Tier” shall be listed on Exhibit A to this Plan.



Section 1.02 Interpretation. In this Plan, unless a clear contrary
intention appears, (a) the words “herein,” “hereof” and “hereunder” refer to this Plan as a whole
and not to any particular Article, Section or other subdivision, (b) reference to any Article or
Section, means such Article or Section hereof and (c) the words “including” (and with correlative
meaning “include”) means including, without limiting the generality of any description preceding
such term. The Article and Section headings herein are for convenience only and shall not affect
the construction hereof.



ARTICLE II.




ELIGIBILITY AND BENEFITS




Section 2.01 Eligible Employees. Only employees of the Company or any of its
Subsidiaries or affiliates who are designated as Participants according to this Section 2.01 shall
be eligible for payments and benefits under this Plan.




(a) The Participants shall be set forth on Exhibit A to this Plan. The
Compensation Committee shall be authorized on and after the Effective Date to designate as
Participants one or more employees of the Company or any of its Subsidiaries or affiliates
(including new hires), which employees shall remain Participants unless the Compensation
Committee, in its discretion, removes such designation. The designation of an employee as a
Participant (or removal of such designation) shall be in writing, signed by the authorized
representative of the Compensation Committee confirming the designation. The Compensation
Committee also shall designate the Participant’s Tier for purposes of the Severance Multiplier,
which designated Tier may be changed by the Compensation Committee in its discretion.
Participants and their Tiers shall be listed on Exhibit A to this Plan, which shall be amended as
required when new designations or changes to the designations are made by the Compensation
Committee.




(b) The Compensation Committee may delegate to the Chief Executive Officer of the
Company, in writing, authority to designate Participants and to designate each Participant’s Tier
for purposes of the Severance Multiplier, or to remove or change such designations, so long as
the employee to be designated is not an “officer” within the meaning of Section 16(b) of the
Exchange Act. Such Participant and Tier designations (and any changes thereto) shall also be
listed in Exhibit A.




(c) A designation of “Tier A” shall mean the Participant’s Severance Multiplier is
three (3x). A designation of “Tier B” shall mean the Participant’s Severance Multiplier is two
(2x).



Section 2.02 Individuals Not Eligible. An individual shall not be eligible to be
a Participant in the Plan, and shall not be designated as such, if the individual is otherwise
designated by the Company as a temporary employee, as an individual working for the Company or any
of its affiliates or subsidiaries on referral from a temporary personnel agency or employee leasing
agency, or as an independent contractor or person working for an independent contractor.



ARTICLE III.




SEVERANCE AND RELATED TERMINATION BENEFITS




Section 3.01 Termination of Employment during Change of Control Period. In
the event that, during a Change in Control Period, a Participant incurs a Termination of Employment
initiated by the Company or any Subsidiary or affiliate without Cause or initiated by the
Participant for Good Reason (for the avoidance of doubt, the Terminations of Employment covered by
the preceding clause do not include a Termination of Employment (w) due to Disability or death, (x)
where there is a simultaneous reemployment or continuing employment of the Participant by the
Company or any Subsidiary or affiliate of the Company in any position; (y) resulting from the
Participant declining an offer of simultaneous reemployment or continuing employment in a
Comparable Position with the Company or with any Subsidiary or affiliate of the Company; and (z)
where a Successor or assign of the Company, or of that portion of the assets of the Company that is
transferred, sold or outsourced to the Successor or assign, offers to the Participant a Comparable
Position), the Participant shall receive the following Change of Control Severance Payment and
benefits, subject to Section 3.02 and any other conditions set forth in this Plan:




(a) Subject to the limitations set forth in Section 3.05, the Change of Control
Severance Payment shall be a lump sum cash payment equal to the sum of (x) the sum of the amounts
described in Sections 3.01(a)(i), (ii), and (iii) multiplied by the Participant’s Severance
Multiplier and (y) the amount described in Section 3.01(a)(iv):




(i) The Participant’s Annual Salary.




(ii) The highest of the bonus payments received by the Participant under the applicable
Company annual bonus plan for the last three annual periods completed prior to the
Termination Date (the “Annual Bonus”). For the avoidance of doubt, the Annual Bonus shall
not include any long term incentive compensation, commissions, or any other incentive or
retention compensation, bonuses, or awards of any kind other than the annual bonus plan
applicable to the Participant.




(iii) The cash value of twelve months of employee and employer premiums (as previously
established by the Company in its sole and exclusive discretion) for qualified medical and
dental plans in which the Participant participates, as of the Termination Date, but
excluding any supplemental health and welfare benefits.




(iv) The product of (A) the Participant’s Annual Bonus and (B) a fraction, the
numerator of which is the number of days which have elapsed in the Company’s current fiscal
year through the Termination Date, and the denominator of which is 365.




(b) The Participant shall be eligible for outplacement services appropriate for a
senior executive of the Company, to be provided by a nationally recognized outplacement firm
capable of providing such services, selected by the Participant with the Company’s approval, in
an amount not to exceed twenty-five thousand dollars and 00/100 cents ($25,000.00) to the extent
such services are used by the Participant within one (1) year of his or her Termination Date.
The Company will reimburse the outplacement firm directly.




(c) Subject to Section 3.04, any Change of Control Severance Payment shall be paid
to the Participant on or before the 90th day after the Termination Date.




(d) The Company shall deduct any required tax withholding from any Change of
Control Severance Payments. There shall be no deferrals, contributions or additional accruals to
any qualified savings or retirement plan of the Company or to any deferred compensation plan of
the Company from, or based on, any Change of Control Severance Payment.



Section 3.02 Condition to Receipt of Severance Benefits. In order to receive any
Change of Control Severance Payment or benefit under this Plan, the Participant must timely
execute, deliver and not revoke a Separation and Release Agreement with the Company on or prior to
the 60th day following the Participant’s Termination Date in a form and with content
determined solely and exclusively by the Compensation Committee (or its designee) and containing
generally the following provisions, unless prohibited by law: No-Hire, Non-Competition,
Confidentiality, Non-Disclosure, Claw-Back, Cooperation, Return of Company Property, and
Comprehensive Waiver, Release and Covenant Not-To-Sue. Such Separation and Release Agreement shall
be provided by the Company to the Participant on or about the Participant’s Termination Date.



Section 3.03 Parachute Payments. In the event that it shall be determined that
any payment or distribution to or for the benefit of any Participant under this Plan or under any
other Company plan, contract or agreement would, but for the effect of this Section, be subject to
the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to
such excise tax (collectively, such excise tax, together with any such interest or penalties, the
“Excise Tax”), then, in the event that the after-tax value of all Payments to a Participant (such
after-tax value to reflect the deduction of the Excise Tax and all income or other taxes on such
Payments) would, in the aggregate, be less than the after-tax value (so calculated) to the
Participant of the Safe Harbor Amount, (i) the cash portions of the Payments payable to the
Participant under this Plan shall be reduced, in the order in which they are due to be paid, until
the Parachute Value of all Payments paid to the Participant, in the aggregate, equals the Safe
Harbor Amount, and (ii) if the reduction of the cash portions of the Payments, payable under this
Plan, to zero would not be sufficient to reduce the Parachute Payments to the Safe Harbor Amount,
then any cash portions of the Payments payable to the Participant under any other plans shall be
reduced, in the order in which they are due to be paid, until the Parachute Value of all Payments
paid to the Participant, in the aggregate, equals the Safe Harbor Amount, and (iii) if the
reduction of all cash portions of the Payments, payable pursuant to this Plan and otherwise, to
zero would not be sufficient to reduce the Parachute Payments to the Safe Harbor Amount, then
non-cash portions of the Payments shall be reduced, in the order in which they are due to be paid,
until the Parachute Value of all Payments paid to the Participant, in the aggregate, equals the
Safe Harbor Amount. 



Section 3.04 Section 409A Compliance. No payments under this Article III shall
be paid to a Participant prior to or during the 6-month period following the Participant’s
Termination Date if the Company determines in its sole discretion that paying such amounts at the
time or times indicated in this Article III would be a prohibited payment of deferred compensation
to a Specified Employee under Section 409A(a)(2)(B)(i) of the Code. If the payment of any such
amounts is not made as a result of the previous sentence, then within 15 business days following
the end of such 6-month period (or such earlier date upon which such amount can be paid under
Section 409A without resulting in a prohibited distribution, including as a result of the
Participant’s death), the Company shall pay the Participant a lump-sum amount equal to the
cumulative amount that would have otherwise been payable to the Participant during such period, and
any remaining amounts due to such Participant shall be paid as otherwise provided in the Plan. For
any payment that is delayed under this Article III, the Company shall also pay to the Participant
interest on the delayed payment at a rate equal to the rate provided under Section 1274(b)(2)(B) of
the Code as of the Termination Date.



Section 3.05 Limitation of Benefits. Notwithstanding anything to the contrary in
this Plan, a Participant’s Change of Control Severance Payment shall be reduced by the aggregate
amount of any termination, redundancy, severance or similar separation payments or benefits (other
than state unemployment benefits) which such Participant is eligible for and receives, due to the
Participant’s Termination of Employment, under any other agreement or plan (including, without
limitation, any severance plans of the Company or any Subsidiary or affiliate or any
government-mandated plans) or pursuant to any statutory, legislative, or regulatory
requirement. 



Section 3.06 Plan Unfunded; Participant’s Rights Unsecured. The Company
shall not be required to establish any special or separate fund or make any other segregation of
funds or assets to assure the payment of any Change of Control Severance Payment or benefit under
this Plan. The right of any Participant to receive the benefits provided for herein shall be an
unsecured claim against the general assets of the Company. No payment or benefit under this Plan
shall be deemed earned, vested or accrued compensation or benefits except according to the express
terms of this Plan.



ARTICLE IV.




DISPUTE RESOLUTION




Section 4.01  Any disputes, controversies or claims which arise between any
Participant (or any person claiming by, through or under any Participant) and the Company or any of
its Subsidiaries and affiliates (including the Compensation Committee) relating to or arising out
of this Plan, which are not settled by agreement between the parties, shall be settled by
arbitration in accordance with the then-current Rules of Practice and Procedure for Employment
Arbitration (“Rules”) of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The
arbitration shall be before a single arbitrator selected in accordance with the JAMS Rules or
otherwise by mutual agreement of the parties. The arbitration shall take place in Los Angeles
County, California, unless the parties agree to hold the arbitration at another location.
Depositions and other discovery shall be allowed in accordance with the JAMS Rules. The arbitrator
shall apply the substantive law (and the law of remedies, if applicable) of the State of California
or federal law, or both, as applicable to the claim(s) asserted.



Section 4.02 In consideration of the benefits provided herein, the anticipated
expedition and the minimizing of expense of this arbitration remedy, and other good and valuable
consideration, the arbitration provisions of this Plan shall provide the exclusive remedy for
disputes arising hereunder, and each party expressly waives any right such party may have to seek
redress in any other forum. The arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve any dispute relating to the interpretation, applicability
and enforceability of this Plan, including but not limited to any claim that all or any part of
this Plan is void or voidable. The arbitration and any decision and award or order of the
arbitrator shall be final and binding upon the parties and judgment thereon may be entered in the
Superior Court of the State of California or any other court having jurisdiction.



Either party may bring an action in any court of competent jurisdiction to compel arbitration under
this Plan and to enforce an arbitration award. Except as otherwise provided in this Plan, both the
Company and the Participant agree that neither of them shall initiate or prosecute any lawsuit or
administrative action in any way related to any claim covered by this Plan.



Section 4.03 Any claim which either party has against the other party, that could be
submitted for resolution pursuant to this Article IV must be presented in writing by the claiming
party to the other party within one year of the date the claiming party knew or should have known
of the facts giving rise to the claim. Unless the party against whom any claim is asserted waives
the time limits set forth above, any claim not brought within the time periods specified shall be
waived and forever barred, even if there is a federal or state statute of limitations which would
have given more time to pursue the claim.



Section 4.04 The Company shall advance the costs and expenses of the arbitrator. In any
arbitration to enforce any of the provisions or rights under this Plan, the unsuccessful party in
such arbitration, as determined by the arbitrator, shall pay to the successful party or parties all
costs, expenses and reasonable attorneys’ fees incurred therein by such party or parties (including
without limitation such costs, expenses and fees on any appeals), and if such successful party or
parties shall recover an award in any such arbitration proceeding, such costs, expenses and
attorneys’ fees shall be included as part of such award. Notwithstanding the foregoing provision,
in no event shall the successful party or parties be entitled to recover an amount from the
unsuccessful party for costs, expenses and attorneys’ fees that exceeds the unsuccessful party’s
costs, expenses and attorneys’ fees in connection with the action or proceeding. Any reimbursement
of attorneys’ fees pursuant to this Section 4.04 shall be provided no later than the last day of
the Participant’s taxable year following the later of (i) the year in which such attorneys’ fees
were incurred and (ii) the year in which the arbitrator determined that the Participant was the
successful party.



Section 4.05 Each of the above terms and conditions shall have separate validity, and the
invalidity of any part thereof shall not affect the remaining parts.



ARTICLE V.




MISCELLANEOUS PROVISIONS




Section 5.01 Cumulative Benefits. Except as provided in Section 3.05 or as
otherwise agreed to in a writing signed between the Company and the Participant, the rights and
benefits provided to any Participant under this Plan are cumulative of, and are in addition to, all
of the other rights and benefits provided to such Participant under any Benefit Plan or any
agreement between such Participant and the Company or any of its Subsidiaries; provided, that, in
no event shall a Participant be entitled to participate in the Severance Pay Plan of Avery Dennison
Corporation, as amended and re-stated effective January 1, 2009, and any amendments or successors
to that plan.



Section 5.02 No Mitigation. No Participant shall be required to mitigate
the amount of any payment provided for in this Plan by seeking or accepting other employment
following a Termination of Employment with the Company. The amount of any payment or benefit
provided for in this Plan shall not be reduced by any compensation or benefit earned by a
Participant as the result of employment by another employer or by retirement or other benefits,
except as described in Section 3.05.



Section 5.03 Amendment, Modification or Termination.




(a) The Compensation Committee may amend, modify, or terminate the Plan at any
time in its sole discretion; provided, however, that: (i) no such amendment, modification or
termination may materially and adversely affect any rights of any Participant who has incurred a
Termination of Employment on or prior to the date of such amendment, modification or termination;
(ii) any termination of the Plan or modification that is a material diminishment of the severance
benefit shall not be effective until twelve (12) months after written notice of such action has
been provided to the Participants, except that any modification or amendment shall be immediately
applicable to any employee designated as a Participant after the date that the Compensation
Committee adopts the modification or amendment; and (iii) the Plan shall not be terminated or
materially amended during any Change of Control Period. Notwithstanding the foregoing, the Plan
shall terminate when all of the obligations to Participants hereunder have been satisfied in
full.




(b) Notwithstanding Section 5.03(a) or any other provision of this Plan, and to
the fullest extent applicable, this Plan shall be interpreted and the terms shall be applied in
accordance with Section 409A. In the event that the Compensation Committee in its sole and
exclusive discretion determines that any payments, disbursements, or benefits provided, or to be
provided, under this Plan may be subject to, and not in compliance with, Section 409A, the
Compensation Committee may adopt at any time (without any obligation to do so or to indemnify any
Participant for failure to do so) such limited amendments to this Plan, including amendments with
retroactive effect, that it reasonably determines are necessary or appropriate to (i) exempt the
compensation and benefits payable under this Plan from Section 409A and/or preserve the intended
tax treatment of the compensation and benefits provided with respect to this Agreement or (ii)
comply with the requirements of Section 409A; and all such amendments shall be immediately
effective as to all Participants.



Section 5.04 Administration.




(a) Subject to the limitations of the Plan, the Compensation Committee shall have
full and final authority, in its sole and exclusive discretion, to administer the Plan, to
construe and interpret its provisions, to decide matters arising under the Plan, and to take all
other actions deemed necessary or advisable for the proper administration of this Plan. No
discretionary action by the Compensation Committee, or any person who is delegated authority
under this Plan, shall amend or supersede the express provisions of this Plan.




(b) For any matter under this Plan for which the Compensation Committee or Company
has discretion or authority affecting whether or not an employee is designated as a Participant
and the Participant’s eligibility to receive a payment or benefit or the amount of the payment or
benefit (such as determinations of Cause, Disability, or eligibility), such discretion or
authority shall be retained by the Compensation Committee exclusively relative to any such
employee who is an officer of the Company under Section 16(b) of the Exchange Act (“16(b)
Officers”).




(c) For any matter under this Plan not covered by Section 5.04(b) and for which
the Compensation Committee or Company has discretion or authority (such as determinations of
Cause, Disability, or eligibility), the Compensation Committee may delegate such discretion or
authority to one or more appropriate executives, except for the authority to terminate the Plan
which shall remain exclusively with the Compensation Committee.



Section 5.05 Consolidations, Mergers, Etc. In the event of a merger,
consolidation or other transaction, nothing herein shall relieve the Company from any of the
obligations set forth in the Plan; provided, however, that nothing in this Section 5.05 shall
prevent an acquirer of or Successor to the Company from assuming the obligations, or any portion
thereof, of the Company hereunder pursuant to the terms of the Plan provided that such acquirer or
Successor provides adequate assurances of its ability to meet this obligation. In the event that an
acquirer of or Successor to the Company agrees to perform the Company’s obligations, or any portion
thereof, hereunder, the Company shall require any person, firm or entity which becomes its
Successor to expressly assume and agree to perform such obligations in writing, in the same manner
and to the same extent that the Company would be required to perform hereunder if no such
succession had taken place.



Section 5.06 Successors and Assigns. This Plan shall be binding upon and
inure to the benefit of the Company and its Successors and assigns. This Plan and all rights of
each Participant shall inure to the benefit of and be enforceable by such Participant and his or
her personal or legal representatives, executors, administrators, heirs and permitted assigns. If
any Participant should die while any amounts are due and payable to such Participant hereunder, all
such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this
Plan to such Participant’s devisees, legatees or other designees or, if there be no such devisees,
legatees or other designees, to such Participant’s estate. No payments, benefits or rights arising
under this Plan may be assigned or pledged by any Participant, except under the laws of descent and
distribution.



Section 5.07 Notices.




(a) All notices and other communications provided for in this Plan shall be in
writing and shall be delivered as follows: (i) if to the Company, at the Company’s principal
office address or such other address as the Company may have designated by written notice to all
Participants for purposes hereof, directed to the attention of the General Counsel, and (ii) if
to any Participant, at his or her residence address on the records of the Company or to such
other address as he or she may have designated to the Company in writing for purposes hereof.
Each such notice or other communication according to this Plan shall be deemed to have been duly
delivered upon being deposited in the United States Mail via certified or registered mail, return
receipt requested, postage prepaid, or by overnight delivery using a service capable of tracking
and confirmation of receipt (with postage fees prepaid) such as FedEx or UPS, except that any
change of notice address shall be effective only upon receipt.




(b) The Company’s Vice President of Compensation and Benefits (or the person
serving in the equivalent role for the Company), or such other executive as may be designated by
the Compensation Committee from time to time, shall deliver to each Participant, within thirty
(30) days of such Participant’s designation on Exhibit A hereto as eligible for this Plan, a
letter notifying such Participant that he or she has been designated as a Participant in the Plan
and his or her Severance Multiplier and Tier, and a copy of the Plan (but not Exhibit A). Within
thirty (30) days following any material amendment to the Plan or any change to the Participant’s
Severance Multiplier, the Vice President of Compensation and Benefits of the Company (or such
other executive as may be designated by the Compensation Committee from time to time) shall
deliver such amendment, amended Plan, or other confirming document to each affected Participant.




(c) For purposes of this Plan, in order for the Company to terminate any
Participant’s employment for Cause, the Company must deliver a Termination Notice to such
Participant, which notice shall be dated the date it is transmitted for delivery to such
Participant, shall specify the Termination Date and shall state that the termination is for Cause
and shall set forth in reasonable detail the particulars thereof. For purposes of this Plan, in
order for the Company to terminate any Participant’s employment for Disability, the Company must
give a Termination Notice to such Participant, which notice shall be dated the date it is
transmitted for delivery to such Participant, shall specify the Termination Date and shall state
that the termination is for Disability and shall set forth in reasonable detail the particulars
thereof. Any Termination Notice delivered by the Company that does not comply, in all material
respects, with the foregoing requirements shall be invalid and ineffective for purposes of this
Plan.



Section 5.08 No Employment Rights Conferred. This Plan shall not be deemed to
create a right, promise, contract or guarantee of employment, continued employment, or of any
particular job position, between any Participant and the Company and/or any of its affiliates or
Subsidiaries.



Section 5.09 Severability. If any provision of the Plan is, becomes or is
deemed to be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions of this Plan shall not be affected thereby.



Section 5.10 Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to its conflict of laws
rules, and applicable federal law.



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