OR
(II)
INDIVIDUALS WHO, AS OF THE EFFECTIVE DATE HEREOF, CONSTITUTE
THE BOARD OF DIRECTORS (THE "INCUMBENT BOARD") CEASE FOR ANY REASON TO
CONSTITUTE AT LEAST A MAJORITY OF THE BOARD; PROVIDED, HOWEVER, THAT ANY
INDIVIDUAL BECOMING A DIRECTOR SUBSEQUENT TO THE EFFECTIVE DATE HEREOF WHOSE
ELECTION, OR NOMINATION FOR ELECTION BY THE COMPANY'S STOCKHOLDERS, WAS APPROVED
BY A VOTE OF AT LEAST A MAJORITY OF THE DIRECTORS THEN COMPRISING THE INCUMBENT
BOARD SHALL BE CONSIDERED AS THOUGH SUCH INDIVIDUAL WERE A MEMBER OF THE
INCUMBENT BOARD, BUT EXCLUDING, FOR THIS PURPOSE, ANY SUCH INDIVIDUAL WHOSE
INITIAL ASSUMPTION OF OFFICE OCCURS AS A RESULT OF EITHER AN ACTUAL OR
THREATENED ELECTION CONTEST (AS SUCH TERMS ARE USED IN RULE 14A-11 OF
REGULATION 14A PROMULGATED UNDER THE EXCHANGE ACT) OR OTHER ACTUAL OR THREATENED
SOLICITATION OF PROXIES OR CONSENTS BY OR ON BEHALF OF A PERSON OTHER THAN THE
BOARD; OR
(III)
APPROVAL BY THE STOCKHOLDERS OF THE COMPANY OF A COMPLETE
LIQUIDATION OR DISSOLUTION OF THE COMPANY OR THE SALE OR OTHER DISPOSITION OF
ALL OR SUBSTANTIALLY
ALL OF THE ASSETS OF THE COMPANY.
(E)
OTHER EVENTS UPON TERMINATION.
IF EMPLOYEE'S EMPLOYMENT HEREUNDER
SHALL BE TERMINATED BY THE COMPANY WITHOUT CAUSE OR BY CONSTRUCTIVE TERMINATION
OTHER THAN WITHIN 24 MONTHS FOLLOWING A CHANGE OF CONTROL, EMPLOYEE SHALL
RECEIVE IN ACCORDANCE WITH THE COMPANY'S THEN CURRENT PAYROLL PRACTICES AN
AMOUNT EQUAL TO THE SUM OF (I) EMPLOYEE'S ANNUAL BASE SALARY FOR THE YEAR IN
WHICH SUCH TERMINATION OCCURS AND (II) THE GREATER OF (A) THE TARGET BONUSES FOR
EACH OF THE FOUR QUARTERS IN THE YEAR IN WHICH SUCH TERMINATION OCCURS AND
(B) THE ACTUAL BONUS EARNED BY EMPLOYEE FOR THE FOUR FISCAL QUARTERS IMMEDIATELY
PRECEDING SUCH TERMINATION, PAYABLE FOR A PERIOD OF TIME EQUAL TO THE LONGER OF
(I) TWO YEARS AND (II) THE PERIOD OF TIME REMAINING UNDER THE THEN CURRENT TERM
OF THIS AGREEMENT (SUCH LONGER PERIOD, THE "SEVERANCE PERIOD"). EMPLOYEE SHALL
RECEIVE HIS ACCRUED AND UNPAID SALARY AND ANY ACCRUED AND UNPAID PRO RATA BONUS
THROUGH THE DATE OF TERMINATION, AND EMPLOYEE WILL CONTINUE TO PARTICIPATE IN
ANY BENEFITS REFERENCED IN SECTION 3.2(C) FOR THE SEVERANCE PERIOD; PROVIDED,
HOWEVER, TO THE EXTENT THAT ANY BENEFIT UNDER SECTION 3.2(C) CANNOT BE CONTINUED
DURING A PERIOD WHEN EMPLOYEE IS NOT AN EMPLOYEE OF THE COMPANY, THE COMPANY
SHALL PAY EMPLOYEE AN AMOUNT IN CASH EQUAL TO THE ECONOMIC VALUE OF SUCH
BENEFIT, SUCH VALUE TO BE DETERMINED AS OF THE TIME OF TERMINATION. IN ADDITION,
ALL STOCK OPTIONS REFERENCED IN SECTION 3.1(C) SHALL VEST EFFECTIVE AS OF THE
DATE OF TERMINATION, AND EMPLOYEE MAY EXERCISE SUCH OPTIONS FOR A PERIOD OF
THREE MONTHS FROM THE DATE OF TERMINATION.
SECTION 4.2
SECTION 4.2
BY EMPLOYEE.
(A)
BREACH OF AGREEMENT BY COMPANY.
IF EMPLOYEE'S EMPLOYMENT HEREUNDER
SHALL BE TERMINATED BY EMPLOYEE PURSUANT TO THE PROVISIONS SET FORTH IN
SECTION 2.3(A) HEREOF PRIOR TO THE EXPIRATION OF THE THEN CURRENT TERM OF THIS
AGREEMENT, EMPLOYEE SHALL RECEIVE IN ACCORDANCE WITH THE