exv10w78






Exhibit 10.78




FORM OF 409A LETTER AMENDMENT TO OFFICERS’ SEVERANCE, CHANGE IN

CONTROL AND EMPLOYMENT AGREEMENTS




Addendum to Severance and Change in Control Provisions



Pursuant to the Letter of Amendment, dated December 17, 2008, the Company and [___]
(“Executive” or “you”) hereby agree to the following amendments to your severance agreement dated
[___], (the “Severance Agreement”), your change in control agreement, dated [___]
(the “Change in Control Agreement”), and your offer letter dated [___] (the “Offer Letter”,
and together with the Severance Agreement and Change in Control Agreement, the “Agreements”):



•    For the purposes of the Agreements, the definition of “Good Reason” shall be as follows to
attempt to fit that definition within a safe harbor provision of Section 409A and the rules and
regulations promulgated thereunder:





“Good Reason” shall mean the occurrence, without Executive’s written consent, of
one or more of the following events: (i) the Company materially decreases
Executive’s responsibilities, or (ii) the Company materially breaches the terms
of this Agreement; provided that no such event shall constitute Good Reason
hereunder unless (a) Executive shall have given written notice to the Company of
Executive’s intent to resign for Good Reason within 30 days after Executive
becomes aware of the occurrence of any such event (specifying in detail the
nature and scope of the event), (b) such event or occurrence shall not have been
cured within 30 days of the Company’s receipt of such notice, (c) any Termination
by Executive for Good Reason following such 30 day cure period must occur no
later than the date that is 30 days following the expiration of such 30 day cure
period.”


•    For the purposes of the Agreements, any reimbursable business expense amounts shall be made
in accordance with applicable Treasury regulations and shall be paid on or before the last day of
your taxable year following the taxable year in which you incurred the expenses. In addition,
these reimbursable expenses will not affect such amounts provided in any other taxable year, and
your right to reimbursement for such amounts shall not be subject to liquidation or exchange for
any other benefit. Such provision shall be inserted into the Agreements as follows:





“Payments Upon Termination. Upon termination of Executive’s employment
for any reason, the Company shall pay Executive (i) his Base Salary earned but
not yet paid for services rendered to the Company on or prior to the date on
which the Employment Period ends, (ii) any accrued but unused vacation days,
(iii) any incurred but unpaid reimbursable business expenses and other insurance
related reimbursable expenses, and (iv) any amounts required under the Company’s
Employee Stock Purchase Plan (or successor plans). Any reimbursement for
expenses payable under subsection (iii) shall be made in accordance with Treasury
Regulation Section 1.409A-3(i)(1)(iv) and shall be paid on or before the last day
of Executive’s taxable year following the taxable year in which Executive
incurred the expenses; provided, however, Executive’s right to reimbursement for
such amounts shall not be subject to liquidation or exchange for any other
benefit.”


•    Amend the provisions of the Agreements to require that you sign a release within a defined
period of time in order to receive his severance for termination without cause or his resignation
for




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good reason. Such provision shall be inserted into the Agreements as follows:





“Termination by the Company Without Cause or Termination by Executive for
Good Reason. Provided that Executive is in compliance with his obligations
under his Proprietary Information and Inventions Agreement with the Company, in
the event Executive’s employment is terminated by the Company Without Cause or by
Executive for Good Reason, the Company shall (i) pay Executive any annual bonus
payable for services rendered in any annual bonus period for the year which had
been completed in its entirety prior to the date on which the Employment Period
ends and that had not previously been paid, provided, however, it is the
Company’s intent that any such annual bonus shall be evaluated by the Board, and
if applicable, paid, no later than December 31 of the calendar year following the
calendar year to which such annual bonus relates, (ii) continue to make Base
Salary payments for (A) a period 6 months following such termination of
employment if the termination occurs on or before the third anniversary of the
date on which Executive commenced employment with the Company, or (B) a period 12
months following such termination of employment if the termination occurs after
such third anniversary date (the period of time such payments are provided, the
“Severance Period”), payable over such 6 month or 12 month period, as the case
may be, on the regular payroll dates of the Company in accordance with
the Company’s payroll practices as in effect on such termination date, and
subject to applicable tax withholding. Such continued Base Salary payments shall
commence upon the first payroll date following the effective date of the Release
Agreement, and the first continued Base Salary payment shall cover the period
between the termination date and such payment, provided, however, no amount shall
be paid pursuant to this section unless, on or prior to the fifty-fifth (55th)
day following the date of the Executive’s Separation from Service (as defined in
the section entitled “Section 409A Payment Delay” below), Executive has executed
an effective Release Agreement and any applicable revocation period has expired.
Each installment payment made pursuant to this section shall be considered a
separate payment for purposes of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”) (including, without limitation, for purposes of
Treasury Regulation Section 1.409A-2(b)(2)(iii)).”


•    Amend the definition of “Change in Control” in the Agreements relating to cash severance to
comply with the definition contained in Section 409A and the rules and regulations promulgated
thereunder. The foregoing amendment applies only to cash severance payments. Your potential
option acceleration is still governed by the definition of change in control in your Change in
Control Agreement. As amended, the definition of “Change in Control” as applied to cash severance
payments in the Agreements shall mean as follows:





“Cash Severance Upon Termination Without Cause or for Good Reason. (a)
Subject to the section entitled “Section 409A Payment Delay” below, in the event
a Change in Control which is also a Cash Severance Change in Control (as defined
below) occurs, and Executive’s employment with the Company is terminated by the
Company Without Cause or by Executive for Good Reason at any time within the
three (3) month period before the date of such Cash Severance Change in Control
or during the twelve (12) month period following the date of such Cash Severance
Change in Control, Executive will receive severance compensation



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equal to the sum of (i) an amount equal to his highest Base Salary in the
calendar year in which the Cash Severance Change in Control occurs, plus (ii) an
amount equal to his target bonus as established by the Board or its Compensation
Committee for the year during which the termination takes place (or if such
target bonus has not yet been established, the target bonus for the prior year),
payable in accordance with Section (b) below.





     For purposes of this Section (a), “Cash Severance Change in Control” shall
mean and include the following:




     (i) the acquisition, directly or indirectly, by any “person” or “group” (as
those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of the Exchange Act
and the rules thereunder) of “beneficial ownership” (as determined pursuant to
Rule 13d-3 under the Exchange Act) of securities entitled to vote generally in
the election of directors (“voting securities”) of the Company that represent 50%
or more of the combined voting power of the Company’s then outstanding voting
securities, other than:




          (x) an acquisition by a trustee or other fiduciary holding securities under
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company or by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any person
controlled by the Company,




          (y) an acquisition of voting securities by the Company or a corporation
owned, directly or indirectly by the shareholders of the Company in substantially
the same proportions as their ownership of the stock of the Company; or




          (z) in a public offering of the Company’s securities.




     (ii) A change in the composition of the Board occurring within a twelve (12)
month period, as a result of which a majority of the incumbent directors are
replaced by directors whose appointment or election is not endorsed by a majority
of the incumbent directors before the date of the appointment or election; or




     (iii) the consummation by the Company (whether directly involving the
Company or indirectly involving the Company through one or more intermediaries)
of (x) a merger, consolidation, reorganization, or business combination or (y) a
sale or other disposition of all or substantially all of the Company’s assets
(provided, the sale of assets does not constitute a related party transfer as set
forth in Treasury Regulation §1.409A-3(i)(5)(viii)(B)), in each case other than a
transaction which results in the Company’s voting securities outstanding
immediately before the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the Company or the
person that, as a result of the transaction, controls, directly or indirectly,
the Company or owns, directly or indirectly, all or substantially all of



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the Company’s assets or otherwise succeeds to the business of the Company
(the Company or such person, the “Successor Entity”) directly or indirectly, at
least fifty percent (50%) of the combined voting power of the Successor Entity’s
outstanding voting securities immediately after the transaction, and





     For purposes of subsection (i) of this definition of “Change in Control,”
the calculation of voting power shall be made as if the date of the acquisition
were a record date for a vote of the Company’s shareholders, and for purposes of
subsection (iii) of the definition of “Change in Control,” the calculation of
voting power shall be made as if the date of the consummation of the transaction
were a record date for a vote of the Company’s shareholders.




(b) Payment Administration. Subject to the section entitled “Section
409A Payment Delay” below, the severance payment under Section (a) shall be made
in a single lump sum on the release effective date of the Release Agreement
referenced in the section entitled “Termination by the Company Without Cause or
Termination by Executive for Good Reason” above ; provided, however, no amount
shall be paid pursuant to this Section (b) unless, on or prior to the fifty-fifth
(55th) day following the later of (i) the Executive’s Separation from Service or
(ii) the effective date of a Cash Severance Change in Control occurring within
three months following Executive’s Separation from Service, Executive has
executed an effective Release Agreement and any applicable revocation period has
expired. Payments under Section 3(a) shall be in addition to the payments under
the section entitled “Termination by the Company Without Cause or Termination by
Executive for Good Reason” above, but shall be in lieu of, and not in addition
to, the payment of any cash severance payments that Executive may otherwise be
entitled to under the terms of the Agreements.”


•    For the purposes of the Agreements, unless an exemption applies, separation pay made to
specified employees of public companies must generally be made no earlier than six (6) months
following their separation from service. Notwithstanding the foregoing changes designed to exempt
your severance compensation from Section 409A of the Code, should the Company determine that any
provision of the Agreements results in an event deemed as non-qualified deferred compensation under
Section 409A and the rules and regulations promulgated thereunder, then the Company will delay
paying the employee for six months or upon the earliest date permissible under Section 409A. The
additional clarifying language stated immediately below is inserted into the Agreements in order to
satisfy the Short-Term Deferral Exemption and to avoid the Six Month Delay Rule with respect to
certain payments (e.g., generally bonus payments):





“Section 409A Payment Delay.




(a) Payment Delay. Notwithstanding anything herein to the contrary, to
the extent any payments to Executive pursuant to the section entitled
“Termination by the Company Without Cause or Termination by Executive for Good
Reason” above or the section entitled “Cash Severance Upon Termination Without
Cause or for Good Reason” above are treated as non-qualified deferred
compensation subject to Section 409A of the Code, then (i) no amount shall be
payable pursuant to such



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section unless Executive’s termination of employment constitutes a “separation
from service” with the Company (as such term is defined in Treasury Regulation
Section 1.409A-1(h) and any successor provision thereto) (a “Separation from
Service”), and (ii) if Executive, at the time of his Separation from Service, is
determined by the Company to be a “specified employee” for purposes of Section
409A(a)(2)(B)(i) of the Code and the Company determines that delayed commencement
of any portion of the termination benefits payable to Executive pursuant to this
Agreement is required in order to avoid a prohibited distribution under Section
409A(a)(2)(B)(i) of the Code (any such delayed commencement, a “Payment Delay”),
then such portion of the Executive’s termination benefits described in the
section entitled “Termination by the Company Without Cause or Termination by
Executive for Good Reason” above or the section entitled “Cash Severance Upon
Termination Without Cause or for Good Reason” above, as the case may be, shall
not be provided to Executive prior to the earlier of (A) the expiration of the
six-month period measured from the date of the Executive’s Separation from
Service, (B) the date of the Executive’s death or (C) such earlier date as is
permitted under Section 409A. Upon the expiration of the applicable Code Section
409A(a)(2)(B)(i) deferral period, all payments deferred pursuant to a Payment
Delay shall be paid in a lump sum to Executive within 30 days following such
expiration, and any remaining payments due under the Agreement shall be paid as
otherwise provided herein. The determination of whether Executive is a
“specified employee” for purposes of Section 409A(a)(2)(B)(i) of the Code as of
the time of his Separation from Service shall made by the Company in accordance
with the terms of Section 409A of the Code and applicable guidance thereunder
(including without limitation Treasury Regulation Section 1.409A-1(i) and any
successor provision thereto).




(b) Exceptions to Payment Delay. Notwithstanding Section (a), to the
maximum extent permitted by applicable law, amounts payable to Executive pursuant
to the section entitled “Termination by the Company Without Cause or Termination
by Executive for Good Reason” above or the section entitled “Cash Severance Upon
Termination Without Cause or for Good Reason” above, as the case may be, shall be
made in reliance upon Treasury Regulation Section 1.409A-1(b)(9) (with respect to
separation pay plans) or Treasury Regulation Section 1.409A-1(b)(4) (with respect
to short-term deferrals). Accordingly, the severance payments provided for in
the section entitled “Termination by the Company Without Cause or Termination by
Executive for Good Reason” above or the section entitled “Cash Severance Upon
Termination Without Cause or for Good Reason” above are not intended to provide
for any deferral of compensation subject to Section 409A of the Code to the
extent (i) the severance payments payable pursuant to the section entitled
“Termination by the Company Without Cause or Termination by Executive for Good
Reason” above or the section entitled “Cash Severance Upon Termination Without
Cause or for Good Reason” above, as the case may be, by their terms and
determined as of the date of Executive’s Separation from Service, may not be made
later than the 15th day of the third calendar month following the later of (A)
the end of the Company’s fiscal year in which Executive’s Separation



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from Service occurs or (B) the end of the calendar year in which Executive’s
Separation from Service occurs, or (ii) (A) such severance payments do not exceed
an amount equal to two times the lesser of (1) the amount of Executive’s
annualized compensation based upon Executive’s annual rate of pay for the
calendar year immediately preceding the calendar year in which Executive’s
Separation from Service occurs (adjusted for any increase during the calendar
year in which such Separation from Service occurs that would be expected to
continue indefinitely had Executive remained employed with the Company) or (2)
the maximum amount that may be taken into account under a qualified plan pursuant
to Section 401(a)(17) for the calendar year in which Executive’s Separation from
Service occurs, and (B) such severance payments shall be completed no later than
December 31 of the second calendar year following the calendar year in which
Executive’s Separation from Service occurs.




(c) Interpretation. To the extent the payments and benefits under this
Agreement are subject to Section 409A of the Code, this Agreement shall be
interpreted, construed and administered in a manner that satisfies the
requirements of Sections 409A(a)(2), (3) and (4) of the Code and the Treasury
Regulations thereunder (and any applicable transition relief under Section 409A
of the Code).”


•    For the purposes of the Agreements, any disability bonus payments that the Company is
required to pay to the Executive shall be paid no later than December 31 of the calendar year
following the calendar year to which such annual bonus relates. As amended, the definition of
“disability” as used in the Agreements shall mean as follows:





“Death and Disability. In the event the Executive’s employment at the
Company ends as a result of Executive’s death, this Agreement shall automatically
terminate and Executive’s estate shall be entitled to receive (i) the amounts
described in the section entitled “Payments Upon Termination” above, and (ii) any
annual bonus payable for services rendered in any annual bonus period for the
year which had been completed in its entirety prior to the date on which the
Employment Period ends and that had not previously been paid. The bonus amount
under clause (ii) will be payable to Executive’s estate when and if such annual
bonuses would otherwise have been payable; provided, however, it is the Company’s
intent that the bonus shall be evaluated by the Board, and, if applicable, paid,
no later than December 31 of the calendar year following the calendar year to
which such annual bonus relates In the event of Executive’s Disability, the
Company shall have the right to terminate this Agreement and Executive’s
employment immediately. Additionally, Executive shall be entitled to his annual
bonus as described under clause (ii) above, except that the payments shall be to
Executive and not his estate.”




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