THE EVENT OF THE OCCURRENCE OF A CHANGE IN
CONTROL WHILE THE EXECUTIVE IS EMPLOYED BY THE COMPANY:
(I)
THE EXECUTIVE SHALL IMMEDIATELY VEST AS TO ALL SHARES UNDER ALL
OUTSTANDING OPTIONS; AND
(II)
IF WITHIN TWELVE (12) MONTHS FOLLOWING THE OCCURRENCE OF THE CHANGE OF
CONTROL, ONE OF THE FOLLOWING EVENTS OCCURS:
(A) THE EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE COMPANY WITHOUT CAUSE; OR
(B) THE EXECUTIVE RESIGNS FOR GOOD REASON
THEN THE COMPANY SHALL PAY THE EXECUTIVE, IN A LUMP SUM, AN AMOUNT EQUAL TO:
(I) THE THEN CURRENT YEAR'S TARGET BONUS PRORATED FOR THE NUMBER OF DAYS OF
EXECUTIVE IS EMPLOYED IN SAID YEAR; (II) TWENTY-FOUR (24) MONTHS' BASE SALARY;
AND (III) THE GREATER OF ONE HUNDRED FIFTY PERCENT (150%) OF THE THEN CURRENT
YEAR'S TARGET BONUS OR THE ACTUAL PRIOR YEAR'S BONUS.
THE EXECUTIVE'S BASE
SALARY SHALL BE PAID AT THE RATE IN EFFECT AT THE TIME OF THE TERMINATION OF
EMPLOYMENT.
(D)
HEALTH INSURANCE.
IF SUBSECTION (B) OR (C) ABOVE APPLIES, AND IF THE
EXECUTIVE ELECTS TO CONTINUE HIS HEALTH INSURANCE COVERAGE UNDER THE
CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985, AS AMENDED ("COBRA")
FOLLOWING THE TERMINATION OF HIS EMPLOYMENT, THEN THE COMPANY SHALL PAY THE
EXECUTIVE'S MONTHLY PREMIUM UNDER COBRA UNTIL THE EARLIEST OF (I) EIGHTEEN (18)
MONTHS FOLLOWING THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT, OR (II) THE DATE
UPON WHICH THE EXECUTIVE COMMENCES EMPLOYMENT WITH AN ENTITY OTHER THAN THE
COMPANY.
(E)
DEFINITION OF "CAUSE."
FOR ALL PURPOSES UNDER THIS AGREEMENT, "CAUSE"
SHALL MEAN ANY OF THE FOLLOWING:
(I)
UNAUTHORIZED USE OR DISCLOSURE OF THE CONFIDENTIAL INFORMATION OR TRADE
SECRETS OF THE COMPANY;
(II)
ANY BREACH OF THIS AGREEMENT OR THE EMPLOYEE PROPRIETARY INFORMATION AND
INVENTIONS AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY;
(III)
CONVICTION OF, OR A PLEA OF "GUILTY" OR "NO CONTEST" TO, A FELONY UNDER
THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF;
(IV)
MISAPPROPRIATION OF THE ASSETS OF THE COMPANY OR ANY ACT OF FRAUD OR
EMBEZZLEMENT BY EXECUTIVE, OR ANY ACT OF DISHONESTY BY EXECUTIVE IN CONNECTION
WITH THE PERFORMANCE OF HIS DUTIES FOR THE COMPANY THAT ADVERSELY AFFECTS THE
BUSINESS OR AFFAIRS OF THE COMPANY; OR
4
(V)
INTENTIONAL MISCONDUCT OR THE EXECUTIVE'S FAILURE TO SATISFACTORILY
PERFORM HIS/HER DUTIES AFTER HAVING RECEIVED WRITTEN NOTICE OF SUCH FAILURE AND
AT LEAST THIRTY (30) DAYS TO CURE SUCH FAILURE.
The foregoing shall not be deemed an exclusive list of all acts or omissions
that the Company may consider as grounds for the termination of the Executive's
Employment.
(F)
DEFINITION OF "GOOD REASON."
FOR ALL PURPOSES UNDER THIS AGREEMENT, THE
EXECUTIVE'S RESIGNATION FOR "GOOD REASON" SHALL MEAN THE EXECUTIVE'S RESIGNATION
WITHIN NINETY (90) DAYS THE OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING
EVENTS:
(I)
THE EXECUTIVE'S POSITION, AUTHORITY OR RESPONSIBILITIES BEING
SIGNIFICANTLY REDUCED;
(II)
THE EXECUTIVE BEING ASKED TO RELOCATE HIS PRINCIPAL PLACE OF EMPLOYMENT
SUCH THAT HIS COMMUTING DISTANCE FROM HIS RESIDENCE PRIOR TO THE CHANGE OF
CONTROL IS INCREASED BY OVER THIRTY-FIVE (35)