RECEIVING RETENTION BONUS.
YOU WILL BE ENTITLED
TO RECEIVE FIFTY PERCENT (50%) OF THE RETENTION BONUS ON JANUARY 1, 2008, AND
FIFTY PERCENT (50%) OF THE RETENTION BONUS ON JANUARY 1, 2009 (EACH, A
"RETENTION DATE"), SUBJECT TO FORFEITURE AND/OR REPAYMENT IF YOU DO NOT REMAIN
EMPLOYED BY THE COMPANY THROUGH JANUARY 1, 2009, AS DESCRIBED BELOW.
NOTWITHSTANDING THE FORGOING, IF YOUR EMPLOYMENT IS TERMINATED BY THE COMPANY
WITHOUT "CAUSE" (AS DEFINED BELOW) PRIOR TO JANUARY 1, 2009, YOU WILL BE
ENTITLED TO THE ENTIRE RETENTION BONUS.
4.
AMOUNT AND TIME OF PAYMENT OF RETENTION BONUS.
THE RETENTION
BONUS IS EQUAL TO $
.
RETENTION BONUS PAYMENTS, LESS ALL
APPLICABLE WITHHOLDING TAXES, WILL BE MADE WITHIN TEN (10) BUSINESS DAYS AFTER A
RETENTION DATE OR YOUR TERMINATION WITHOUT CAUSE, AS APPLICABLE.
5.
FORFEITURE OR REPAYMENT OF RETENTION BONUS.
NOTWITHSTANDING THE
FORGOING, IF YOUR EMPLOYMENT IS TERMINATED BY THE COMPANY FOR CAUSE PRIOR TO
JANUARY 1, 2010, YOU FORFEIT YOUR RIGHT TO RECEIVE ANY UNPAID RETENTION BONUS
PAYMENT AND, IF APPLICABLE, YOU MUST REPAY TO THE COMPANY, WITHIN 30 DAYS OF
YOUR TERMINATION FOR CAUSE, THE AMOUNT OF ANY RETENTION BONUS PAYMENT MADE TO
YOU.
FOR PURPOSES OF THIS AGREEMENT, "CAUSE" MEANS (I) "CAUSE" AS THAT TERM MAY BE
DEFINED IN ANY WRITTEN EMPLOYMENT AGREEMENT BETWEEN YOU AND THE COMPANY OR ANY
OF ITS AFFILIATES, WHICH MAY AT ANY TIME BE IN EFFECT, (II) YOUR WILLFUL AND
CONTINUED FAILURE TO SUBSTANTIALLY PERFORM YOUR DUTIES HEREUNDER (OTHER THAN ANY
SUCH FAILURE RESULTING FROM YOUR DISABILITY OR ANY SUCH FAILURE SUBSEQUENT TO
YOUR BEING DELIVERED NOTICE OF THE COMPANY'S INTENT TO TERMINATE YOUR EMPLOYMENT
WITHOUT CAUSE OR DELIVERING TO THE COMPANY A NOTICE OF YOUR INTENT TO TERMINATE)
FOLLOWING WRITTEN NOTICE BY THE COMPANY TO YOU THAT SPECIFICALLY IDENTIFIES SUCH
FAILURE AND YOUR NOT CURING SUCH FAILURE WITHIN THIRTY (30) DAYS FOLLOWING
RECEIPT OF SUCH NOTICE (FOR THE AVOIDANCE OF DOUBT, YOUR UNSATISFACTORY
PERFORMANCE OF YOUR DUTIES SHALL NOT BE DEEMED TO BE A FAILURE TO SUBSTANTIALLY
PERFORM); (III) CONVICTION OF, OR A PLEA OF NOLO CONTENDERE TO, (A) A FELONY
(OTHER THAN TRAFFIC-RELATED) UNDER THE LAWS OF THE UNITED STATES OR ANY STATE
THEREOF OR ANY SIMILAR CRIMINAL ACT IN A JURISDICTION OUTSIDE THE UNITED STATES,
OR (B) A CRIME INVOLVING MORAL TURPITUDE THAT COULD BE INJURIOUS TO THE COMPANY
OR ITS REPUTATION; (IV) YOUR WILLFUL MALFEASANCE OR WILLFUL MISCONDUCT WHICH IS
MATERIALLY AND DEMONSTRABLY INJURIOUS TO THE COMPANY; OR (V) ANY ACT OF FRAUD BY
YOU IN THE PERFORMANCE OF YOUR DUTIES HEREUNDER.
6.
EFFECT OF RETENTION BONUS ON OTHER BENEFITS.
THE PAYMENT OF ANY
RETENTION BONUS WILL NOT ALTER YOUR ENTITLEMENT TO OR THE AMOUNT OF ANY
SEVERANCE OR OTHER PAYMENT YOU ARE ENTITLED TO UNDER ANY OTHER PLANS, POLICIES
OR ARRANGEMENTS OF THE COMPANY.
7.
CONFIDENTIALITY.
YOU ARE REQUIRED TO KEEP CONFIDENTIAL AND MAY
NOT DISCUSS WITH ANYONE (OTHER THAN YOUR SPOUSE, OR AS MAY BE REQUIRED BY LAW OR
ANY COURT ORDER, PROVIDED THEY ALSO KEEP CONFIDENTIAL)