COMPANY EQUITY (E.G. RESTRICTED STOCK, RESTRICTED STOCK UNITS, STOCK OPTIONS OR
SIMILAR INSTRUMENTS) THAT ARE OUTSTANDING AND UNVESTED AT THE TIME OF SUCH
TERMINATION BUT WHICH WOULD, BUT FOR A TERMINATION OF EMPLOYMENT, HAVE VESTED
DURING THE SEVERANCE PERIOD SHALL VEST AS OF THE DATE OF SUCH TERMINATION OF
EMPLOYMENT; PROVIDED THAT ANY OUTSTANDING AWARD WITH A VESTING SCHEDULE THAT
WOULD, BUT FOR A TERMINATION OF EMPLOYMENT, HAVE RESULTED IN A SMALLER
PERCENTAGE (OR NONE) OF THE AWARD BEING VESTED THROUGH THE END OF THE SEVERANCE
PERIOD THAN IF IT VESTED ANNUALLY PRO RATA OVER ITS VESTING PERIOD SHALL, FOR
PURPOSES OF THIS PROVISION, BE TREATED AS THOUGH IT VESTED ANNUALLY PRO RATA
OVER ITS VESTING PERIOD (E.G., IF 100 RSUS WERE GRANTED 2.7 YEARS PRIOR TO THE
DATE OF TERMINATION AND VESTED PRO RATA ON THE FIRST FIVE ANNIVERSARIES OF THE
GRANT DATE AND 100 RSUS WERE GRANTED 1.7 YEARS PRIOR TO THE DATE OF TERMINATION
AND VESTED ON THE FIFTH ANNIVERSARY OF THE GRANT DATE, THEN ON THE DATE OF
TERMINATION 20 RSUS FROM THE FIRST AWARD AND 40 RSUS FROM THE SECOND AWARD WOULD
VEST); AND PROVIDED FURTHER THAT ANY AMOUNTS THAT WOULD VEST UNDER THIS
PROVISION BUT FOR THE FACT THAT OUTSTANDING PERFORMANCE CONDITIONS HAVE NOT BEEN
SATISFIED SHALL VEST ONLY IF, AND AT SUCH POINT AS, SUCH PERFORMANCE CONDITIONS
ARE SATISFIED; AND
(iv)
any then vested options of Executive (including options vesting as a
result of (iii) above) to purchase Company equity, shall remain exercisable
through the date that is
2
eighteen months following the date of such termination or, if earlier, through
the scheduled expiration date of such options.
THE PAYMENT TO EXECUTIVE OF THE SEVERANCE BENEFITS DESCRIBED IN THIS SECTION
1(D) (INCLUDING ANY ACCELERATED VESTING), SHALL BE SUBJECT TO EXECUTIVE'S
EXECUTION AND NON-REVOCATION OF A GENERAL RELEASE OF THE COMPANY AND ITS
AFFILIATES, IN A FORM SUBSTANTIALLY SIMILAR TO THAT USED FOR SIMILARLY SITUATED
EXECUTIVES OF THE COMPANY AND ITS AFFILIATES, AND EXECUTIVE'S COMPLIANCE WITH
THE RESTRICTIVE COVENANTS SET FORTH IN SECTION 2 HEREOF. EXECUTIVE ACKNOWLEDGES
AND AGREES THAT THE SEVERANCE BENEFITS DESCRIBED IN THIS SECTION 1(D)
CONSTITUTES GOOD AND VALUABLE CONSIDERATION FOR SUCH RELEASE. FOR PURPOSES OF
THIS AGREEMENT, "GOOD REASON" SHALL MEAN THE OCCURRENCE OF ANY OF THE FOLLOWING
WITHOUT EXECUTIVE'S PRIOR WRITTEN CONSENT:
(A) EXECUTIVE BEING REQUIRED TO
REPORT TO SOMEONE OTHER THAN THE COMPANY'S CHIEF EXECUTIVE OFFICER AND/OR THE
VICE CHAIRMAN AS OF THE EFFECTIVE DATE, (B) THE MATERIAL REDUCTION IN
EXECUTIVE'S TITLE, DUTIES OR LEVEL OF RESPONSIBILITIES AS OF THE EFFECTIVE DATE,
EXCLUDING FOR THIS PURPOSE ANY SUCH REDUCTION THAT IS AN ISOLATED AND
INADVERTENT ACTION NOT TAKEN IN BAD FAITH OR THAT IS AUTHORIZED PURSUANT TO THIS
AGREEMENT, BUT INCLUDING ANY CIRCUMSTANCES UNDER WHICH THE COMPANY IS NO LONGER
PUBLICLY TRADED AND IS CONTROLLED BY ANOTHER COMPANY, (C) ANY REDUCTION IN
EXECUTIVE'S BASE SALARY, OR (D) THE RELOCATION OF EXECUTIVE'S PRINCIPAL PLACE OF
EMPLOYMENT OUTSIDE OF THE METROPOLITAN AREA OF EXECUTIVE'S PRINCIPAL PLACE OF
EMPLOYMENT AS