Exhibit 10.2


 


CUBIC
CORPORATION


 


TRANSITION
PROTECTION PLAN


 


SECTION 1.   INTRODUCTION.


 


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


 


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


 


The Board has carefully considered the report
of the Executive Compensation Committee and its independent advisors and has
evaluated available alternative courses of action, including that of continuing
the status quo.  After discussion, debate
and evaluation, the Board has unanimously decided to adopt the Plan to
reinforce and encourage the continued dedication of key executives to their
duties without the distraction arising from the possibility of a Change in
Control of the Company and to provide such key executives with the benefits
stated herein that ensure that the expectations of the executives will be
satisfied, and that are also competitive with those of similar companies.


 


The Plan will provide for the payment of
severance benefits to certain eligible employees of the Company in the event
that such employees are subject to qualifying employment terminations in
connection with a Change in Control.


 


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


 


SECTION 2.   DEFINITIONS.


 


For purposes of the Plan, the following terms
are defined as follows:


 


(a)           “Affiliate” means any company controlled by, controlling
or under common control with the Company.


 





















 


(b)           “Base Salary” means, with respect to a Participant, the
average of the Participant’s annual base pay (excluding incentive pay, premium
pay, commissions, overtime, bonuses and other forms of variable compensation)
paid or payable for the five fiscal years (or such annualized shorter period as
the Participant has been employed by the Company) immediately prior to the
Change in Control or immediately prior to the Participant’s termination of
employment, whichever is greater, without
consideration of any reduction constituting a Constructive Termination.


 


(c)           “Average Bonus” means, with respect to a
Participant,  an amount equal to the
average of the annual cash and long-term bonuses  (excluding Base Salary and excluding any
commissions, expatriate premiums, fringe benefits (including without limitation
car allowances), option grants, equity awards, employee benefits and other
similar items of compensation) paid or payable by the Company to the Participant
for the five fiscal years (or such annualized shorter period as the Participant
has been employed by the Company) immediately prior to the Change in Control or
immediately prior to the Participant’s termination of employment, whichever is
greater.


 


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


 


(i)            Any
acquisition of beneficial ownership (as defined in the Securities Exchange Act
of 1934, as amended (the “Exchange Act”))
as defined in Rule 13d-3 of the Exchange Act of such number of shares of
the Company’s equity securities by any individual, entity or group (within the
meaning of Section 13(d)(3) of the Exchange Act) (a “Person”)  (other than Walter J. Zable or a trust
established for himself, his spouse or issue) which enables such Person to
elect a majority of the Company’s Board by cumulative voting, assuming 90% of
outstanding shares vote;


 


(ii)           Any
sale of a Substantial Portion of the Property (as defined herein) of the
Company.


 


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


 


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


 


(v)            The
consummation by the Company, directly or indirectly, in one or more steps, of a
merger, consolidation, reorganization, or business combination or any act or
event which results in a majority of the Company’s Board as existing
immediately prior to such acts or events not continuing to serve as such.


 


(e)           “Code”  means the Internal Revenue Code of 1986, as
amended.


 


(f)            “Company” means Cubic Corporation and its Subsidiaries or,
following a Change in Control, the surviving entity resulting from such
transaction.


 


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


 


(i)            a
substantial reduction in the nature or scope of the Participant’s authority, duties,
function or responsibilities (and not simply a change in title or reporting
relationships) in effect immediately prior to the effective date of the Change
in Control; provided, however,
that it shall not be a “Constructive Termination” if, following the effective
date of the Change in Control, either (a) the Company is retained as a
separate legal entity or business unit and the Participant holds the same
position in such legal entity or business unit as the Participant held before
such effective date, or (b) the Participant holds a position with authority,
duties, function or responsibilities
comparable (though not necessarily identical, in view of the relative sizes of
the Company and the entity involved in the Change in Control) to those of the
Participant prior to the effective date of the Change in Control;


 


(ii)           a reduction in the
Participant’s base salary (except for
salary decreases generally applicable to the Company’s other similarly-situated
employees);


 


(iii)         an elimination of the Participant’s opportunity to achieve
bonuses on a basis comparable to that provided prior to the Change in Control,
or, if the Participant participates in the Company’s Management Annual
Incentive Plan or the Company’s Management 3-Year Incentive Plan, then an
amendment to either such plan that reduces the percentage of average annual
salary used to determine Participant’s bonus under such plan or plans either:
(x) by more than 50% or (y) by an amendment that is not generally applicable to
the Company’s other similarly-situated employees;


 


(iv)          an
increase in the Participant’s one-way driving distance from the Participant’s
principal personal residence to the principal office or business location at
which the Participant is required to perform services of more than 20 miles,
except for required travel for the Company’s business to an extent
substantially consistent with Participant’s prior business travel obligations;


 


(v)            a
material breach by the Company of any provisions of the Plan or any enforceable
written agreement between the Company and the Participant;  or


 


(vi)          any
failure by the Company to obtain assumption of the Plan by any successor or
assign of the Company.


 


Notwithstanding
the foregoing, a voluntary termination shall not be deemed a Constructive
Termination unless (x) the Participant provides the Company with written notice
(the “Constructive Termination Notice”)
that the Participant believes that an event described in this Section 2(g) has
occurred, (y) the Constructive Termination Notice is given within three (3) months
of the date the event occurred, and (z) the Company does not rescind or cure
the conduct giving rise to the event described in this Section 2(g) within
ten (10) days of receipt by the Company of the Constructive Termination
Notice.


 


(h)           “Covered Termination”
means, with respect to a Participant, an Involuntary Termination Without Cause
or a Constructive Termination, but only if such event occurs at any 


 


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time within three
(3) months before or twenty-four (24)
months following the effective date of a Change in Control. Termination
of employment of a Participant due to death or disability shall not constitute
a Covered Termination unless a voluntary termination of employment by the
Participant immediately prior to the Participant’s death or disability would
have qualified as a Constructive Termination.


 


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


 


(j)            “Involuntary Termination Without Cause” means, with
respect to a Participant, an involuntary termination of employment by the
Company other than for one of the following reasons:


 


(i)            the
willful and continued failure of the Participant to perform substantially the Participant’s
duties to the Company as those duties exist on the date of the Change in
Control (or the date of termination, if earlier), other than any failure
resulting from circumstances outside the Participant’s control, or from
incapacity of the Participant due to physical or mental illness or disability,
or following the Participant’s delivery of a Constructive Termination Notice,
after a written demand for substantial performance is delivered to the
Participant, which demand specifically identifies the manner in which the
Company believes that the Participant has not substantially performed the
Participant’s duties satisfactorily, and provided that the Company demonstrates
that such failure has a demonstrably harmful impact on the Company or its
reputation, and provided further that the Participant has been given a period
of at least 30 days to cure his failure in performance.  No act or failure to act shall be considered “willful”
unless it is done, or omitted to be done, in bad faith or without reasonable
belief that the action was in the best interests of the Company or the
Subsidiary; or


 


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


 


(iii)         the
Participant’s conviction (which has become final) or entry of a plea of guilty
or nolo contendere regarding an act that
would be deemed a felony under California or Federal criminal statutes (or any
comparable criminal laws of any jurisdiction in which the Participant is
permanently employed by the Company or a Subsidiary) that has a demonstrably
harmful impact on the Company’s business or reputation, as determined in good
faith by the Company’s Executive Compensation Committee, provided
that such termination occur within 12 months following the Company’s
discovery of such event.


 


(k)           “Participant”
means an individual who is employed by the Company as its Executive Chairman of
the Board, Chief Executive Officer, as a senior vice president, or as a vice
president (other than any individual who is a vice president on sales
commission, as determined by the Company in its sole discretion) and such other
key employees as may be recommended by the Company’s management and selected by
the Company’s Executive Compensation Committee; provided, however, that if the Company’s Executive
Compensation 


 


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Committee shall
make an affirmative determination that an employee serving in any such capacity
shall not be a Participant, then such employee shall not be deemed a
Participant.  Any key employee who is
selected by the Company’s Executive Compensation Committee to be a Participant
shall become a Participant immediately following such action.  The determination of whether an employee is a
Participant shall be made by such Committee, in its sole discretion, and such
determination shall be binding and conclusive on all persons.


 


(l)            “Participation Notice”
means the latest notice delivered by the Company to a Participant informing the
employee that the employee is a Participant in the Plan, substantially in the
form of Exhibit A hereto.


 


(m)          “Plan Administrator”
means the Board or any committee duly authorized by the Board to administer the
Plan.  The Plan Administrator may, but is
not required to be, the Compensation Committee of the Board.  The Board may at any time administer the
Plan, in whole or in part, notwithstanding that the Board has previously
appointed a committee to act as the Plan Administrator.


 


(n)           “Subsidiary” or “Subsidiaries” means
Cubic Defense Applications, Inc., Cubic Transportation Systems, Inc.,
Cubic Simulation Systems, Inc. and Cubic Applications, Inc. and any
other entity that is designated by the Board.


 


(o)           “Substantial Portion of the Property” means the sale of
assets for an amount totaling at least 51% of the aggregate consolidated book
value of the assets of the Company or a Subsidiary as set forth on the
consolidated balance sheet of the Company or on the balance sheet of a
Subsidiary for its most recent year end, as certified by its regular
independent certified public accountants.


 


SECTION 3.   ELIGIBILITY FOR BENEFITS.


 


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


 


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


 


(i)            The employee has executed an
individually negotiated employment contract or agreement with the Company
relating to severance or change in control benefits that is in effect on his or
her termination date, in which case such employee’s severance benefit, if any,
shall be governed by the terms of such individually negotiated employment
contract or agreement and shall be governed by this Plan only to the extent
that the reduction pursuant to Section 6(b) below does not entirely
eliminate benefits under this Plan.


 


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(ii)           The
employee voluntarily terminates employment with the Company in order to accept
employment with another entity that is controlled (directly or indirectly) by
the Company or is otherwise an affiliate of the Company.


 


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


 


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


 


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


 


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


 


(ii)           owns,
manages, operates, joins, controls or participates in the ownership,
management, operation or control of, is employed by or connected in any manner
with, any person, enterprise or entity which is engaged in any business
competitive with that of the Company; provided,
however, that such restriction will not apply to any passive
investment representing an interest of less than five percent (5%) of an
outstanding class of publicly-traded securities of any corporation or other
entity or enterprise;


 


(iii)         encourages
or solicits any of the Company’s then current employees to leave the Company’s
employ for any reason or interferes in any other manner with employment
relationships at the time existing between the Company and its then current
employees; or


 


(iv)          induces
any of the Company’s then current clients, customers, suppliers, vendors,
distributors, licensors, licensees or other third party to terminate their
existing business relationship with the Company or interferes in any other
manner with any existing business relationship between the Company and any then
current client, customer, supplier, vendor, distributor, licensor, licensee or
other third party.


 


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


 


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SECTION 4.   AMOUNT OF BENEFITS.


 


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


 


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


 


In addition, the post-termination of
employment exercise period of any outstanding option held by the Participant on
the date of his or her Covered Termination shall be extended, if necessary,
such that the post-termination of employment exercise period shall not
terminate prior to the later of (i) the date twelve (12) months after the
effective date of the Covered Termination (or, if the stock option was held by
the individual at the time he or she first became a Participant in this Plan
and counsel for the Company has not advised the Company that such acceleration
would not cause such option to be treated as covered by Section 409A of
the Code or would not cause the Participant to become subject to the immediate
taxation prior to the date of exercise, additional tax and interest under Section 409A
of the Code, then the later of the 15th day of the third month
following the date at which, or December 31 of the calendar year in which,
the stock option would otherwise have expired if the stock option had not been
extended pursuant to this Section 4(b), based on the terms of the stock option
at the original grant date) or (ii) the post-termination exercise period
provided for in such option; provided, however,
that such option shall not be exercisable after the expiration of its maximum
term.


 


(c)           Continued
Medical Benefits.  If a Participant
incurs a Covered Termination and the Participant was enrolled in a health,
dental, or vision plan sponsored by the Company
immediately prior to such Covered Termination, the Participant may be eligible
to continue coverage under such health, dental, or vision plan (or to convert
to an individual policy), at the time of the Participant’s termination of
employment, under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).  The Company will notify the Participant of
any such right to continue such coverage at the time of termination pursuant to
COBRA.  No provision of this Plan will
affect the continuation coverage rules under COBRA, except that the
Company’s payment, if any, of applicable insurance premiums will be credited as
payment by the Participant for purposes of the Participant’s payment required
under COBRA.  Therefore, the period
during which a Participant may elect to continue the Company’s health, dental,
or vision plan coverage at his or her own expense under COBRA, the length of
time during which COBRA coverage will be made available to the Participant, and
all other rights and obligations of the Participant under COBRA (except the
obligation to pay insurance premiums that the Company pays, if any) will be
applied in the same manner that such rules would apply in the absence of
this Plan.


 


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If a
Participant timely elects continued coverage under COBRA, the Company shall pay
the full amount of the Participant’s COBRA premiums on behalf of the
Participant for the Participant’s continued coverage under the Company’s health
plans (including any dental care plans, but excluding any vision care plans
maintained by the Company), including coverage for the Participant’s eligible
dependents, during the lesser of: (i) the number of months of Base Salary
and Average Bonus in respect of which the amount paid to the Participant under Section 4(a) was
calculated (the “Severance Period”), or (ii) 18
months; provided, however, that
no such premium payments shall be made following the Participant’s death or the
effective date of the Participant’s coverage by a health plan of a subsequent
employer, except as necessary to provide coverage under this Plan to the
Participant’s surviving spouse.  Each Participant
shall be required to notify the Company immediately if the Participant becomes
covered by a health plan of a subsequent employer.  Upon the conclusion of such period of
insurance premium payments made by the Company, the Participant will be responsible
for the entire payment of premiums required under COBRA for the duration of the
COBRA period.


 


For purposes
of this Section 4(c), (i) references to COBRA shall be deemed to
refer also to analogous provisions of state law and (ii) any applicable
insurance premiums that are paid by the Company shall not include any amounts
payable by the Participant under an Code Section 125 health care
reimbursement plan, which amounts, if any, are the sole responsibility of the
Participant.


 


(d)           Other
Employee Benefits.  During a
Participant’s Severance Period, the Participant shall not be entitled to
reimbursement for fringe benefits other than as provided in this Plan, nor
shall the Participant be entitled to receive any payments or other compensation
attributable to vacation periods that would have been earned had Participant’s
employment continued during the Severance Period.  Executive’s participation in all tax-deferred
or tax qualified retirement and cafeteria plans shall cease upon termination of
employment.   All other employee benefits not described in
this Section 4 shall terminate as of the Participant’s termination date
(except to the extent that a conversion privilege may be available thereunder).


 


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


 


(f)            Moving
Expenses.  If within 24 months prior
to the Change in Control a Participant had relocated his personal residence at
the request of the Company, then upon such Participant’s Covered Termination
the Company shall pay all costs and expenses of relocating the Participant, his
or her household goods and his or her family to a location of the Participant’s
choice, provided that the cost of such relocation shall not exceed the cost to
relocate to the city in which his or her immediately previous residence was
located, and provided further that such costs
and expenses would otherwise be deductible under Code Section 217.  If the Participant had purchased a residence
when he or she relocated, the Company shall also reimburse the Participant for
the reasonable costs of sale of such new residence in accordance with the
Company’s relocation policies in existence immediately before the Change in
Control.  All such amounts shall be
grossed up for federal and state income taxes.


 


(g)           Additional
Benefits.  Notwithstanding the
foregoing, the Company may, in its sole discretion, provide benefits in
addition to those pursuant to Sections 4(a), 4(b), 4(c), 4(d), 


 


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4(e), and 4(f),
to Participants or employees who are not Participants (“Non-Participants”)
chosen by the Company, in its sole discretion; provided
that the Company shall communicate in writing on behalf of the Board
to such Participants or Non-Participants who become entitled to such benefits;
and provided further that the provision of
any such benefits to a Participant or a Non-Participant shall in no way
obligate the Company to provide such benefits to any other Participant or to
any other Non-Participant, even if similarly situated.  If benefits under the Plan are provided to a
Non-Participant, references in the Plan to “Participant”(with the exception of
Sections 4(a), 4(b), 4(c), 4(d), 4(e), and 4(f)) shall be deemed to refer to
such Non- Participants.


 


SECTION 5.   TIME AND FORM OF SEVERANCE PAYMENTS.


 


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


 


(b)           Application
of Section 409A.  In the event
that any cash severance benefit provided under Section 4(a) or
continued medical benefit under Section 4(c) shall fail to satisfy
the distribution requirement of Section 409A(a)(2)(A) of the Code as
a result of the application of Section 409A(a)(2)(B)(i) of the Code, the
payment of such benefit shall be accelerated to the minimum extent necessary so
that the benefit is not subject to the provisions of Section 409A(a)(1) of
the Code.  (The payment schedule as
revised after the application of the preceding sentence shall be referred to as
the “Revised Payment Schedule.”)  In the event the payment of benefits pursuant
to the Revised Payment Schedule would be subject to Section 409A(a)(1) of
the Code, the payment of such benefits shall not be paid pursuant to the
Revised Payment Schedule and instead the payment of such benefits shall be
delayed to the minimum extent necessary so that such benefits are not subject
to the provisions of Section 409A(a)(1) of the Code.  The Board may attach conditions to or adjust
the amounts paid pursuant to this Section 5(b) to preserve, as
closely as possible, the economic consequences that would have applied in the
absence of this Section 5(b); provided, however,
that no such condition or adjustment shall result in the payments being subject
to Section 409A(a)(1) of the Code.


 


SECTION 6.   LIMITATIONS ON BENEFITS.


 


(a)           Release.  In order to be eligible to receive benefits
under the Plan, a Participant also must execute a general waiver and release in
substantially the form attached hereto as Exhibit B and such release must
become effective in accordance with its terms. 
For purposes of the preceding sentence, with respect to any outstanding
option held by the Participant, the receipt of benefits shall be deemed to be
the exercise of such option pursuant to the extended exercisability of such
option under Section 4(b), rather than the acceleration or extension of
such 


 


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option’s
exercisability. The Company, in its sole discretion, may modify the form of the
required release to comply with applicable law and shall determine the form of
the required release, which may be incorporated into a termination agreement or
other agreement with the Participant.


 


(b)           Certain
Reductions.  The Company, in its sole
discretion, shall have the authority to reduce a Participant’s severance
benefits, in whole or in part, by any other severance benefits, pay in lieu of
notice, or other similar benefits payable to the Participant by the Company
that become payable in connection with the Participant’s termination of
employment pursuant to (i) any applicable legal requirement, including,
without limitation, the Worker Adjustment and Retraining Notification Act (the “WARN Act”), (ii) a written
employment or severance agreement with the Company, or (iii) any Company
policy or practice providing for the Participant to remain on the payroll for a
limited period of time after being given notice of the termination of the
Participant’s employment.  The benefits
provided under this Plan are intended to satisfy, in whole or in part, any and
all statutory obligations and other contractual obligations of the Company that
may arise out of a Participant’s termination of employment, and the Plan
Administrator shall so construe and implement the terms of the Plan.  The Company’s decision to apply such
reductions to the severance benefits of one Participant and the amount of such
reductions shall in no way obligate the Company to apply the same reductions in
the same amounts to the severance benefits of any other Participant, even if
similarly situated.  In the Company’s
sole discretion, such reductions may be applied on a retroactive basis, with
severance benefits previously paid being recharacterized as payments pursuant
to the Company’s statutory or other contractual obligations.


 


(c)           Mitigation.  Except as otherwise specifically provided
herein, a Participant shall not be required to mitigate damages or the amount
of any payment provided under this Plan by seeking other employment or otherwise,
nor shall the amount of any payment provided for under this Plan be reduced by
any compensation earned by a Participant as a result of employment by another
employer or any retirement benefits received by such Participant after the date
of the Participant’s termination of employment with the Company.


 


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


 


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


 


(f)            Parachute
Payments.   If any payment or benefit (including payments
or benefits pursuant to this Plan) that a Participant would receive in
connection with a Change in Control or otherwise (a “Payment”) (a) would constitute a “parachute payment”
within the meaning of Section 280G of the Code, and (b) but for this
sentence, would be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise Tax”), then
the Company shall cause to be 


 


10





















 


determined,
before any amount of the Payment is paid to such Participant, which of the
following two alternative forms of payment would maximize the Participant’s
after-tax proceeds: (i) payment in full of the entire amount of the
Payment including any amounts to be paid to the Participant pursuant to this
Plan (a “Full Payment”), or (ii) payment
of only a part of the Payment so that the Participant receive the largest
payment possible without the imposition of the Excise Tax (a “Reduced Payment”), whichever amount results
in the Participant’s receipt, on an after-tax basis, of the greater amount of
the Payment notwithstanding that all or some portion of the Payment may be
subject to the Excise Tax.  For purposes
of determining whether to make a Full Payment or a Reduced Payment, the Company
shall cause to be taken into account all applicable federal, state and local
income and employment taxes and the Excise Tax (all computed at the highest
applicable marginal rate, net of the maximum reduction in federal income taxes
which could be obtained from a deduction of such state and local taxes).  If a Reduced Payment is made, (i) the Payment
shall be paid only to the extent permitted under the Reduced Payment
alternative, and the Participant shall have no rights to any additional
payments and/or benefits constituting the Payment, and (ii) reduction in
payments and/or benefits shall occur in the following order unless the
Participant elects in writing a different order (provided, however, that such election shall be subject to
Company approval if made on or after the date on which the event that triggers
the Payment occurs): (1) reduction of cash payments; (2) cancellation
of accelerated vesting of equity awards other than stock options; (3) cancellation
of accelerated vesting of stock options; and (4) reduction of other
benefits paid to the Participant.  In the
event that acceleration of compensation from the Participant’s equity awards is
to be reduced, such acceleration of vesting shall be canceled in the reverse
order of the date of grant unless the Participant elects in writing a different
order for cancellation.


 


The
independent registered public accounting firm engaged by the Company for
general audit purposes as of the day prior to the effective date of the Change
in Control shall make all determinations required to be made under this
Section.  If the independent registered
public accounting firm so engaged by the Company is serving as accountant or
auditor for the individual, entity or group effecting the Change in Control,
the Company shall appoint a nationally recognized independent registered public
accounting firm to make the determinations required hereunder.  The Company shall bear all expenses with
respect to the determinations by such independent registered public accounting
firm required to be made hereunder.


 


The
independent registered public accounting firm engaged to make the
determinations hereunder shall provide its calculations, together with detailed
supporting documentation, to the Company and the Participant within fifteen
(15) calendar days after the date on which the Participant’s right to a Payment
is triggered (if requested at that time by the Company or Executive) or such
other time as requested by the Company or the Participant.  If the independent registered public
accounting firm determines that no Excise Tax is payable with respect to a
Payment, either before or after the application of the Reduced Amount, it shall
furnish the Company and the Participant with an opinion reasonably acceptable
to the Participant that no Excise Tax will be imposed with respect to such
Payment.  Any good faith determinations
of the accounting firm made hereunder shall be final, binding and conclusive
upon the Company and the Participant.


 


11





















 


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


 


(a)           Exclusive
Discretion.  The Plan Administrator
shall have the exclusive discretion and authority to establish rules, forms,
and procedures for the administration of the Plan and to construe and interpret
the Plan and to decide any and all questions of fact, interpretation, definition,
computation or administration arising in connection with the operation of the
Plan, including, but not limited to, the eligibility to participate in the Plan
and amount of benefits paid under the Plan. 
The rules, interpretations, computations and other actions of the Plan
Administrator shall be binding and conclusive on all persons.


 


(b)           Amendment
or Termination.  The term of this
Plan shall be the period commencing on the Effective Date and ending on December 31,
2008, provided, however, that commencing on January 1, 2006, and on each January 1
thereafter (a “Renewal Date”), the term of this
Agreement shall be extended so as to terminate three years from such Renewal
Date if, and only if, at any time during the calendar year prior to the Renewal
Date the Company’s Executive Compensation Committee (or its Board) resolves to
extend the term for an additional year. Unless otherwise required by law, no
approval of the shareholders of the Company shall be required for any amendment
or termination including any amendment that increases the benefits provided
under any option or other stock award.


 


(c)           The
Company’s Executive Compensation Committee may amend the Plan to reduce the
benefits provided under Section 4 or may provide that a person who is a
Participant shall no longer be a Participant; provided,
however, that if the Company’s Executive Compensation Committee either
amends the Plan to reduce the benefits provided under Section 4 or makes
an affirmative determination that an employee shall no longer be a Participant,
then such action shall become first effective on the 3rd anniversary
of such determination; provided that, within
30 days before or after such action, the Company gives the Participant notice
of such event.  The determination of
whether to reduce the benefits provided in Section 4 or whether an
employee shall no longer be a Participant shall be made by the Company’s
Executive Compensation Committee, in its sole discretion, and such
determination shall be binding and conclusive on all persons.


 


(d)           Regardless
of whether such action would be deemed to impair a Participant’s rights under
the Plan, the Company’s Executive Compensation Committee may amend the Plan in
any way to comply with applicable legal requirements.  Except as expressly provided herein,  the Company’s Executive Compensation Committee
may amend the Plan at any time; provided that
no such amendment may impair the rights of a Participant without such
Participant’s consent.


 


SECTION 8.   NO IMPLIED EMPLOYMENT CONTRACT.


 


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


 


12





















 


SECTION 9.      LEGAL CONSTRUCTION.


 


This Plan shall be governed by and construed
under the laws of the State of California (without regard to principles of
conflict of laws), except to the extent preempted by ERISA.


 


SECTION 10.    CLAIMS,
INQUIRIES AND APPEALS.


 


(a)           Applications
for Benefits and Inquiries.  Any
application for benefits, inquiries about the Plan or inquiries about present
or future rights under the Plan must be submitted to the Plan Administrator in
writing by an applicant (or his or her authorized representative).  The Plan Administrator is:


 


Cubic Corporation


Attn:  Vice President, Human Resources


9333 Balboa Avenue


San Diego, California 92123


 


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


 


(1)           the
specific reason or reasons for the denial;


 


(2)           references
to the specific Plan provisions upon which the denial is based;


 


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


 


(4)           an
explanation of the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the applicant’s right to bring a
civil action under Section 502(a) of ERISA following a denial on
review of the claim, as described in Section 10(d) below.


 


This notice of denial will be given to the
applicant within ninety (90) days after the Plan Administrator receives the
application, unless special circumstances require an extension of time, in
which case, the Plan Administrator has up to an additional ninety (90) days for
processing the application.  If an
extension of time for processing is required, written notice of the extension
will be furnished to the applicant before the end of the initial ninety (90)
day period.


 


13





















 


This notice of extension will describe the
special circumstances necessitating the additional time and the date by which
the Plan Administrator is to render its decision on the application.


 


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


 


Cubic Corporation


Attn:  Vice President, Human Resources


9333 Balboa Avenue


San Diego, California 92123


 


A request for review must set forth all of
the grounds on which it is based, all facts in support of the request and any
other matters that the applicant feels are pertinent.  The applicant (or his or her representative)
shall have the opportunity to submit (or the Plan Administrator may require the
applicant to submit) written comments, documents, records, and other
information relating to his or her claim. 
The applicant (or his or her representative) shall be provided, upon
request and free of charge, reasonable access to, and copies of, all documents,
records and other information relevant to his or her claim.  The review shall take into account all
comments, documents, records and other information submitted by the applicant
(or his or her representative) relating to the claim, without regard to whether
such information was submitted or considered in the initial benefit
determination.


 


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


 


(1)           the
specific reason or reasons for the denial;


 


(2)           references
to the specific Plan provisions upon which the denial is based;


 


(3)           a
statement that the applicant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents, records and other
information relevant to his or her claim; and


 


14





















 


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


 


(e)           Rules and
Procedures.  The Plan Administrator
will establish rules and procedures, consistent with the Plan and with
ERISA, as necessary and appropriate in carrying out its responsibilities in
reviewing benefit claims.  The Plan
Administrator may require an applicant who wishes to submit additional
information in connection with an appeal from the denial of benefits to do so
at the applicant’s own expense.


 


(f)            Exhaustion of Remedies. 
No legal action for benefits under the Plan may be brought until the
applicant (i) has submitted a written application for benefits in
accordance with the procedures described by Section 10(a) above, (ii) has
been notified by the Plan Administrator that the application is denied, (iii) has
filed a written request for a review of the application in accordance with the
appeal procedure described in Section 10(c) above, and (iv) has
been notified that the Plan Administrator has denied the appeal.  Notwithstanding the foregoing, if the Plan
Administrator does not respond to an applicant’s claim or appeal within the
relevant time limits specified in this Section 10, the applicant may proceed
directly to arbitration pursuant to Section 11.


 


SECTION 11.    ARBITRATION


 


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


 


(b)           Except
as otherwise specifically provided in this Plan, the provisions of this Section 11
shall be absolutely exclusive for any and all purposes and fully applicable to
each and every dispute regarding the Plan, including any claim which, if
pursued through any state or federal court or administrative proceeding, would
arise at law, in equity or pursuant to statutory, regulatory or common law
rules, regardless of whether such claim would arise in contract, tort or under
any other legal or equitable theory or basis. 
The arbitrator shall have jurisdiction and authority to award only Plan
benefits and prejudgment interest; and apart from such benefits and interest,
the arbitrator shall not have any authority or jurisdiction to make any award
of any kind including, without limitation, compensatory damages, punitive
damages, foreseeable or unforeseeable economic damages, damages for pain and
suffering or emotional distress, adverse tax consequences or any other kind or
form of damages.  The remedy, if any,
awarded by such arbitrator shall be the sole and exclusive remedy for each and
every claim which is subject to 


 


15





















 


arbitration
pursuant to this Section 11.  Any
limitations on the relief that can be awarded by the arbitrator are in no way
intended (i) to create rights or claims that can be asserted outside
arbitration or (ii) in any other way to reduce the exclusivity of
arbitration as the sole dispute resolution mechanism with respect to this Plan.


 


(c)           The
Plan and the Company will be the necessary parties to any action or proceeding
involving the Plan.  No person employed
by the Company, no Eligible Employee or any other person having or claiming to
have an interest in the Plan will be entitled to any notice or process, unless
such person is a named party to the action or proceeding.  In any arbitration proceeding, all relevant
statutes of limitation apply.  Any final
judgment or decision that may be entered in any such action or proceeding will
be binding and conclusive on all persons having or claiming to have any
interest in the Plan.


 


SECTION 12.    BASIS OF PAYMENTS TO AND FROM PLAN.


 


All benefits under the Plan shall be paid by
the Company.  The Plan shall be unfunded,
and benefits hereunder shall be paid only from the general assets of the
Company.


 


SECTION 13.    OTHER PLAN INFORMATION.


 


(a)           Employer
and Plan Identification Numbers.  The
Employer Identification Number assigned to the Company (which is the “Plan
Sponsor” as that term is used in ERISA) by the Internal Revenue Service is 77-0182779.  The Plan Number assigned to the Plan by the
Plan Sponsor pursuant to the instructions of the Internal Revenue Service is 520.


 


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


 


(c)           Agent
for the Service of Legal Process. 
The agent for the service of legal process with respect to the Plan is:


 


Cubic Corporation


Attn:  Vice President, Human Resources


9333 Balboa Avenue


San
Diego, California 92123


 


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


 


Cubic Corporation


Attn:  Vice President, Human Resources


9333 Balboa Avenue


San
Diego, California 92123


 


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


 


16





















 


SECTION 14.    STATEMENT OF ERISA RIGHTS.


 


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


 


Receive Information About Your Plan and
Benefits


 


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


 


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


 


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


 


Prudent Actions By Plan Fiduciaries


 


In addition to
creating rights for Plan participants, ERISA imposes duties upon the people who
are responsible for the operation of the employee benefit plan.  The people who operate the Plan, called “fiduciaries”
of the Plan, have a duty to do so prudently and in the interest of you and
other Plan participants and beneficiaries. 
No one, including your employer, your union or any other person, may
fire you or otherwise discriminate against you in any way to prevent you from
obtaining a Plan benefit or exercising your rights under ERISA.


 


Enforce Your Rights


 


If your claim for a Plan benefit is denied or
ignored, in whole or in part, you have a right to know why this was done, to
obtain copies of documents relating to the decision without charge, and to
appeal any denial, all within certain time schedules.


 


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


 


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


 


17





















 


If you are discriminated against for
asserting your rights, you may seek assistance from the U.S. Department of
Labor, or you may file suit in a Federal court. 
The court will decide who should pay court costs and legal fees.  If you are successful, the court may order
the person you have sued to pay these costs and fees.  If you lose, the court may order you to pay
these costs and fees, for example, if it finds your claim is frivolous.


 


Assistance With Your Questions


 


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


 


SECTION 15.    GENERAL PROVISIONS.


 


(a)           Notices.  Any notice, demand or request required or
permitted to be given by either the Company or a Participant pursuant to the
terms of this Plan shall be in writing and shall be deemed given when delivered
personally or deposited in the U.S. mail, First Class with postage
prepaid, and addressed to the parties, in the case of the Company, at the
address set forth in Section 10(a) and, in the case of a Participant,
at the address as set forth in the Company’s employment file maintained for the
Participant as previously furnished by the Participant or such other address as
a party may request by notifying the other in writing.


 


(b)           Transfer
and Assignment.  The rights and
obligations of a Participant under this Plan may not be transferred or assigned
without the prior written consent of the Company.  This Plan shall be binding upon any surviving
entity resulting from a Change in Control and upon any other person who is a
successor by merger, acquisition, consolidation or otherwise to the business
formerly carried on by the Company without regard to whether or not such person
or entity actively assumes the obligations hereunder.


 


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


 


(d)           Severability.  Should any provision of this Plan be
declared or determined to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired.


 


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


 


18





















 


SECTION 16.    EXECUTION.


 


To record the adoption of the Plan as set
forth herein, Cubic Corporation has caused its duly authorized officer to
execute the same as of the Effective Date.


 


	
   

  	
  CUBIC CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ William W. Boyle

  	
   

  
	
   

  	
  Senior Vice President,

  
	
   

  	
  Chief Financial Officer

  



 


19





















 


EXHIBIT A


 


CUBIC
CORPORATION


TRANSITION
PROTECTION PLAN

PARTICIPATION NOTICE


 


	
  To:

  
	
   

  
	
  Date:

  



 


Cubic Corporation (the “Company”) has adopted
the Cubic Corporation Transition Protection Plan (the “Plan”).  The Company is providing you with this
Participation Notice to inform you that, given your position at the Company,
you qualify as a participant in the Plan. A copy of the Plan document, which
also constitutes a summary plan description, is attached to this Participation
Notice. The terms and conditions of your participation in the Plan are as set
forth in the Plan, and in the event of any conflict between this Participation
Notice and the Plan, the terms of the Plan shall prevail. Subject to the
provisions of the Plan, the details of your Plan benefits, as described in Section 4
of the Plan, are as follows:


 


Cash Severance
Benefit:                             
months.


 


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


 


Outplacement Services:  Up to $              .


 


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


 


	
   

  	
  CUBIC CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  



 


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


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print name

  



 


20





















 


EXHIBIT B


 


RELEASE
AGREEMENT


 


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


 


In consideration of benefits I will receive
under the Plan, I hereby generally and completely release the Company and its
directors, officers, employees, shareholders, members, partners, agents,
attorneys, predecessors, successors, parent and subsidiary entities, insurers,
affiliates, and assigns from any and all claims, liabilities and obligations,
both known and unknown, that arise out of or are in any way related to events,
acts, conduct, or omissions occurring prior to my signing this Release.  This Release includes, but is not limited to:
(1) all claims arising out of or in any way related to my employment with
the Company or the termination of that employment; (2) all claims related
to my compensation or benefits from the Company, including, but not limited to,
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
pay, fringe benefits, stock, stock options, or any other ownership interests in
the Company; (3) all claims for breach of contract, wrongful termination,
and breach of the implied covenant of good faith and fair dealing; (4) all
tort claims, including, but not limited to, claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (5) all
federal, state, and local statutory claims, including, but not limited to,
claims for discrimination, harassment, retaliation, attorneys’ fees, or other
claims arising under the federal Civil Rights Act of 1964 (as amended), the
federal Americans with Disabilities Act of 1990, the federal Age Discrimination
in Employment Act of 1967 (as amended) (“ADEA”), and the California Fair Employment
and Housing Act (as amended).


 


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


 


If I am not over the age of 40 years at the
time of an Covered Termination (as that term is defined in the Plan), I
understand and agree that I will have ten days to consider and execute this
release and that it shall be effective upon such execution.


 


1





















 


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


 


I acknowledge that I have read and understand
Section 1542 of the California Civil Code which reads as follows:  “A general release does
not extend to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor.”  I hereby expressly waive and relinquish all
rights and benefits under that section and any law of any jurisdiction of
similar effect with respect to my release of any claims I may have against the
Company, its affiliates, and the entities and persons specified above.


 


 


	
   

  	
  EMPLOYEE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
					



 


2