1.2
"CHANGE IN CONTROL DATE" MEANS THE FIRST
DATE DURING THE TERM (AS DEFINED IN SECTION 2) ON WHICH A CHANGE IN CONTROL
OCCURS.
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IF (A) A
CHANGE IN CONTROL OCCURS, (B)
THE EXECUTIVE'S EMPLOYMENT WITH THE
2
COMPANY IS TERMINATED PRIOR TO THE DATE ON WHICH THE CHANGE IN CONTROL OCCURS,
AND (C) EITHER (I) SUCH TERMINATION OF EMPLOYMENT (X) WAS AT THE REQUEST OF A
THIRD PARTY WHO HAS TAKEN STEPS REASONABLY CALCULATED TO EFFECT A CHANGE IN
CONTROL OR (Y) OTHERWISE AROSE IN CONNECTION WITH OR IN ANTICIPATION OF A CHANGE
IN CONTROL, OR (II) SUCH TERMINATION OF EMPLOYMENT OCCURS FOLLOWING THE
EXECUTION OF A DEFINITIVE AGREEMENT FOR SUCH CHANGE IN CONTROL, THEN FOR ALL
PURPOSES OF THIS AGREEMENT THE "CHANGE IN CONTROL DATE" SHALL MEAN THE DATE
IMMEDIATELY PRIOR TO THE DATE OF SUCH TERMINATION OF EMPLOYMENT.
2.
TERM OF AGREEMENT.
THIS AGREEMENT, AND
ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, SHALL TAKE EFFECT UPON THE
EFFECTIVE DATE AND SHALL EXPIRE UPON THE FIRST TO OCCUR OF (A) THE EXPIRATION OF
THE TERM (AS DEFINED BELOW) IF A CHANGE IN CONTROL HAS NOT OCCURRED DURING THE
TERM, (B) THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY PRIOR
TO THE CHANGE IN CONTROL DATE, OR (C) IF A CHANGE IN CONTROL HAS OCCURRED DURING
THE TERM, THE FULFILLMENT BY THE COMPANY OF ALL OF ITS OBLIGATIONS UNDER
SECTIONS 4 AND 5.2 AND 5.3.
"TERM" SHALL MEAN THE PERIOD COMMENCING AS OF THE
EFFECTIVE DATE AND CONTINUING IN EFFECT THROUGH MARCH 1, 2010; PROVIDED,
HOWEVER, THAT COMMENCING ON MARCH 1, 2010 AND EACH MARCH 1 THEREAFTER, THE TERM
SHALL BE AUTOMATICALLY EXTENDED FOR ONE ADDITIONAL YEAR UNLESS, NOT LATER THAN
90 DAYS PRIOR TO THE SCHEDULED EXPIRATION OF THE TERM (OR ANY EXTENSION
THEREOF), THE COMPANY SHALL HAVE GIVEN THE EXECUTIVE WRITTEN NOTICE THAT THE
TERM WILL NOT BE EXTENDED.
3.
EMPLOYMENT STATUS; NOT AN EMPLOYMENT
CONTRACT.
THE EXECUTIVE ACKNOWLEDGES THAT THIS AGREEMENT DOES NOT CONSTITUTE A
CONTRACT OF EMPLOYMENT OR IMPOSE ON THE COMPANY ANY OBLIGATION TO RETAIN THE
EXECUTIVE AS AN EMPLOYEE AND THAT THIS AGREEMENT DOES NOT PREVENT THE EXECUTIVE
FROM TERMINATING EMPLOYMENT AT ANY TIME.
IF THE EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY TERMINATES FOR ANY REASON AND SUBSEQUENTLY A CHANGE IN CONTROL SHALL
OCCUR, THE EXECUTIVE SHALL NOT BE ENTITLED TO ANY BENEFITS HEREUNDER EXCEPT AS
OTHERWISE PROVIDED PURSUANT TO SECTION 1.2.
4.
BENEFITS TO EXECUTIVE.
4.1
STOCK ACCELERATION.
IF THE CHANGE IN
CONTROL DATE OCCURS DURING THE TERM, THEN, EFFECTIVE UPON THE CHANGE IN CONTROL
DATE, (A) EACH OUTSTANDING OPTION TO PURCHASE SHARES OF COMMON STOCK OF THE
COMPANY HELD BY THE EXECUTIVE SHALL VEST AND BECOME IMMEDIATELY EXERCISABLE IN
FULL AND SHARES OF COMMON STOCK OF THE COMPANY RECEIVED UPON EXERCISE OF ANY
OPTIONS WILL NO LONGER BE SUBJECT TO A RIGHT OF REPURCHASE BY THE COMPANY,
(B) EACH OUTSTANDING RESTRICTED STOCK AWARD SHALL BE DEEMED TO BE FULLY VESTED
AND