**Exhibit 10.2**

 

**SEPARATION AGREEMENT AND RELEASE**

 

This Separation Agreement and Release (“Agreement”) is made by andbetween 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 andconditions set forth in his offer letter signed July 25, 2005 (the “OfferLetter”); and

 

WHEREAS, Employee signed an Employment, Confidential Information andInvention Assignment Agreement****withthe Company on August 17, 2005 (the “Confidentiality Agreement”);

 

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

 

WHEREAS, Employee entered into the UTStarcom, Inc. RetentionAgreement****with the Company on November 30,2007 (the “Retention Agreement”) granting Employee that certain retentionincentive represented by some of the Equity Awards (as defined below), whichvested as to 25% of the award on November 30, 2007 and is scheduled tovest as to 25% of the award annually on each November 30 thereafter,subject to the terms and conditions of the Retention Agreement (the “RetentionIncentive”);

 

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

 

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

 

WHEREAS, Employee is resigning from (1) his seat on the Company’sBoard of Directors, and (2) his employment as Executive Vice President andChief 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 theEmployee may have against the Company and any of the Releasees as definedbelow, including, but not limited to, any and all claims arising out of or inany way related to Employee’s employment with or separation from the Company;

 

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

 

**COVENANTS**

** **

1.                                       Consideration.

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a.                                       Resignation.Employee hereby tenders notice to the Company of his voluntary resignation fromemployment with the Company, and from any and all of the Company’s subsidiariesor affiliates, and from his seat on the Company’s Board of Directors, and fromany 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 eightythousand dollars ($380,000), less applicable withholding. This payment will bemade to Employee within ten (10) business days after the Effective Date ofthis Agreement.

 

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

 

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

 

2.                                       AccruedWages and Vacation; Expenses. The Company will pay Employee all ofEmployee’s accrued and unused vacation through the Resignation Date. Followingthe timely submission of proper expense reports by Employee, the Company shallreimburse Employee for all documented expenses reasonably and necessarilyincurred by Employee in connection with the business of the Company prior tothe Resignation Date. These payments shall be made promptly upon terminationand within the period of time mandated by law.

 

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

 

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

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# 4.                                       Payment of Salary and Receipt of All Benefits. Employee acknowledges and represents that, otherthan the payments and other consideration set forth above in this Agreement,the Company has paid or provided all salary, wages, bonuses, accruedvacation/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 toEmployee, including but not limited to any and all benefits under the OfferLetter, the Retention Agreement, and the Severance Agreement. Employee furtheracknowledges and represents that he has received any leave to which he wasentitled or which he requested, if any, under the California Family Rights Actand/or the Family Medical Leave Act, and that he did not sustain any workplaceinjury, during his employment with the Company.

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# 5.                                       Release of Claims. Employee agrees that other than the Company’songoing obligations to Employee as set forth in the Indemnity Agreement, whichis not affected by this Agreement, the foregoing consideration representssettlement in full of all outstanding obligations owed to Employee by theCompany and its current and former officers, directors, employees, agents,investors, attorneys, shareholders, administrators, affiliates, benefit plans,plan administrators, insurers, divisions, and subsidiaries, and predecessor andsuccessor 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, orpursue, any claim, complaint, charge, duty, obligation, or cause of actionrelating to any matters of any kind, whether presently known or unknown,suspected or unsuspected, that Employee may possess against any of the Releaseesarising from any omissions, acts, facts, or damages that have occurred up untiland including the Effective Date of this Agreement, including, withoutlimitation:

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

 

b.                                      anyand all claims relating to, or arising from, Employee’s right to purchase, oractual purchase of shares of stock of the Company, including, withoutlimitation, any claims for fraud, misrepresentation, breach of fiduciary duty,breach of duty under applicable state corporate law, and securities fraud underany state or federal law;

 

c.                                       anyand all claims for wrongful discharge of employment; termination in violationof 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 intentionalinfliction of emotional distress; fraud; negligent or intentionalmisrepresentation; negligent or intentional interference with contract orprospective economic advantage; unfair business practices; defamation; libel;slander; negligence; personal injury; assault; battery; invasion of privacy;false imprisonment; conversion; and disability benefits;

 

d.                                      anyand 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 Americanswith 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

 

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Discrimination in Employment Act of 1967; the Older Workers BenefitProtection Act;****the EmployeeRetirement Income Security Act of 1974; the Worker Adjustment and RetrainingNotification Act; the Family and Medical Leave Act, except as prohibited bylaw; the Sarbanes-Oxley Act of 2002; the California Family Rights Act; theCalifornia Labor Code, except as prohibited by law; the California Workers’Compensation Act, except as prohibited by law; and the California FairEmployment and Housing Act;

 

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

 

f.                                         any and all claimsarising out of any other laws and regulations relating to employment oremployment discrimination;

 

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

 

h.                                      any and allclaims for attorneys’ fees and costs.

 

Employee agrees that the release set forth in this section shall be andremain in effect in all respects as a complete general release as to the mattersreleased. This release does not extend to any obligations incurred under thisAgreement. This release does not release claims that cannot be released as amatter of law, including, but not limited to: (1) Employee’s right to file a charge with or participate in acharge by the Equal Employment Opportunity Commission, or any other local,state, or federal administrative body or government agency that is authorizedto enforce or administer laws related to employment, against the Company (withthe understanding that any such filing or participation does not give Employeethe right to recover any monetary damages against the Company; Employee’srelease of claims herein bars Employee from recovering such monetary relieffrom the Company); (2) claims under Division 3, Article 2 of theCalifornia Labor Code (which includes California Labor Code section 2802regarding indemnity for necessary expenditures or losses by employee); and (3) claimsprohibited 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, ormade as an advance on wages to be earned, unless payment of such wages has beenmade”).

 

# 6.                                       Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges that he is waiving andreleasing any rights he may have under the Age Discrimination in Employment Actof 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 claimsthat may arise under the ADEA after the Effective Date of this Agreement.Employee acknowledges that the consideration given for this waiver and releaseis 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) heshould consult with an attorney prior to executing this Agreement; (b) hehas twenty-one (21) days within which to consider this Agreement; (c) hehas seven (7) days following his execution of this Agreement to revokethis Agreement; (d) this Agreement shall not be effective until after therevocation period has expired; and (e) nothing in this Agreement preventsor precludes Employee from challenging or seeking a determination in good faithof the validity of this waiver under the ADEA, nor does it impose any conditionprecedent, penalties, or costs for doing so, unless specifically authorized byfederal law. In the event Employee signs this Agreement and returns it to theCompany in less than the 21-day period identified above, Employee herebyacknowledges that

 

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# he has freely and voluntarily chosen to waive thetime period allotted for considering this Agreement.

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

 

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

 

Employee, being aware of said code section and with the exceptions asset 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 representsthat he does not intend to bring any claims on his own behalf or on behalf ofany other person or entity against the Company or any of the other Releasees.

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

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# 10.                                 Trade Secrets and Confidential Information/CompanyProperty. Employee reaffirms andagrees to observe and abide by the terms of the Confidentiality Agreement,specifically including the provisions therein regarding nondisclosure of theCompany’s trade secrets and confidential and proprietary information, andnon-solicitation of Company employees. Employee’s signature below constituteshis certification under penalty of perjury that he has returned all documentsand other items provided to Employee by the Company, developed or obtained byEmployee in connection with his employment with the Company, or otherwisebelonging to the Company.

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# 11.                                 No Cooperation Adverse To Releasees. Employee further agrees that he will notknowingly encourage, counsel, or assist any attorneys or their clients in thepresentation or prosecution of any disputes, differences, grievances, claims,charges, or complaints by any third party against any of the Releasees, unlessunder a subpoena or other court order to do so or as related directly to theADEA waiver in this Agreement. Employee agrees both to immediately notify theCompany 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 orother court order. If approached by anyone for counsel or assistance in thepresentation or prosecution of any disputes, differences, grievances, claims,charges, or complaints against any of the Releasees, Employee shall state nomore than that he cannot provide counsel or assistance.

 

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# 12.                                 Cooperation With TheCompany. In the event of anylitigation, threat of litigation, or investigation by any local, state orfederal administrative agency, Employee agrees that he will cooperate fully andmake himself reasonably available to the Company and/or its counsel in theevent that the Company determines in good faith that Employee’s assistancewould be helpful to the Company. If Employee is called on to provide suchcooperation, the Company will reimburse Employee for reasonable out-of-pocketexpenses.

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# 13.                                 Mutual Non-Disparagement. Employee agrees to refrain from any disparagingstatements about the Company or any of the other Releasees including, withoutlimitation, the business, products, intellectual property, financial standing,future, or employment/compensation/benefit practices of the Company. TheCompany agrees to refrain from any disparaging statements about Employee, *provided that* Employee understandsthat the Company’s obligations under this Paragraph extend only to theCompany’s current executive officers and members of its Board of Directors andonly for so long as each officer or member is an employee or Director of theCompany. Employee shall direct any inquiries by potential future employers tothe Company’s Chairman of the Board.

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# 14.                                 Breach. Employee acknowledges and agrees that any material breach of this Agreement,unless such breach constitutes a legal action by Employee challenging orseeking a determination in good faith of the validity of the waiver hereinunder the ADEA, or of any provision of the Confidentiality Agreement shallentitle the Company immediately to recover and/or cease providing theconsideration provided to Employee under this Agreement, except as provided bylaw.

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

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

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

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# 18.                                 ARBITRATION. THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS OFTHIS 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 OTHERRELIEF IN SUCH DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANYARBITRATION IN ACCORDANCE WITH CALIFORNIA LAW, INCLUDING THE CALIFORNIA CODE OFCIVIL PROCEDURE, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURALCALIFORNIA LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO ANYCONFLICT-OF-LAW PROVISIONS OF ANY

 

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# JURISDICTION. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITHCALIFORNIA LAW, CALIFORNIA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THEARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THEARBITRATION. THE PARTIES AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATIONSHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTIONTO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION SHALL EACH PAYAN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTYSHALL SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED,HOWEVER, THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THEPREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. THE PARTIES HEREBY AGREE TOWAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAWBY A JUDGE OR JURY. NOTWITHSTANDING THE FOREGOING, THIS SECTION WILL NOTPREVENT EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONALREMEDY) FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECTMATTER OF THEIR DISPUTE RELATING TO THIS AGREEMENT AND THE AGREEMENTSINCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATIONAGREEMENT CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER ARBITRATIONAGREEMENT BETWEEN THE PARTIES, THE PARTIES AGREE THAT THIS ARBITRATIONAGREEMENT SHALL GOVERN.

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# 19.                                 Authority. The Company represents and warrants that the undersigned has theauthority to act on behalf of the Company and to bind the Company and all whomay claim through it to the terms and conditions of this Agreement. Employeerepresents and warrants that he has the capacity to act on his own behalf andon behalf of all who might claim through him to bind them to the terms andconditions of this Agreement. Each Party warrants and represents that there areno liens or claims of lien or assignments in law or equity or otherwise of oragainst any of the claims or causes of action released herein.

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# 20.                                 No Representations. Employee represents that he has had anopportunity to consult with an attorney, and has carefully read and understandsthe scope and effect of the provisions of this Agreement. Employee has notrelied upon any representations or statements made by the Company that are notspecifically set forth in this Agreement.

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

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

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

 

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# Agreement and Employee’s employment with andseparation from the Company and the events leading thereto and associatedtherewith, and supersedes and replaces any and all prior agreements andunderstandings concerning the subject matter of this Agreement and Employee’s relationshipwith the Company, with the exception of the ConfidentialityAgreement, the Indemnity Agreement and the Equity Award Agreements.

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

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# 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 andexclusive jurisdiction and venue in the State of California.

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# 26.                                 Effective Date. Employee has seven (7) days after he signs this Agreement to revokeit. This Agreement will become effective on the eighth (8th) day after Employeesigned this Agreement, so long as it has been signed by the Parties and has notbeen revoked (the “Effective Date”).

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

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# 28.                                 Voluntary Execution of Agreement. Employee understands and agrees that he executedthis Agreement voluntarily, without any duress or undue influence on the partor behalf of the Company or any third party, with the full intent of releasingall of his claims against the Company and any of the other Releasees. Employeeacknowledges that:

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(a)                                  he has read this Agreement;

 

(b)                                 he has been represented in the preparation, negotiation, andexecution of this Agreement by legal counsel of his own choice or has electednot to retain legal counsel;

 

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

 

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

 

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IN WITNESS WHEREOF, the Parties have executed this Agreement on therespective 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 |

 

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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               |   |

 

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*Includes acceleration of vesting of the Retention Incentive

 

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