TO WHICH SUCH OPTIONS WERE GRANTED;
(VI)
EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROVIDED UNDER THE
TERMS OF ANY NON-ORDINARY COURSE GRANT OR AWARD MADE TO EXECUTIVE AFTER DECEMBER
31, 2005 (INCLUDING, WITHOUT LIMITATION, THE RSU AGREEMENTS GOVERNING THE 2006
RSU GRANT AND THE 2007 RSU GRANT), ALL DEFERRED STOCK, RESTRICTED STOCK AND
OTHER EQUITY-BASED AWARDS WILL BECOME FULLY VESTED AND NON-FORFEITABLE, AND ALL
RESTRICTIONS AND CONDITIONS WITH RESPECT TO SUCH AWARDS SHALL LAPSE, AND ALL
SUCH AWARDS AND ARRANGEMENTS WILL BE SETTLED IN ACCORDANCE WITH THE PLANS AND
PROGRAMS UNDER WHICH THE AWARDS WERE GRANTED OR GOVERNING SUCH ARRANGEMENTS
INCLUDING, IF SO PERMITTED BY THE PLANS OR PROGRAMS, EXECUTIVE'S DULY EXECUTED
DEFERRAL ELECTION FORMS OR THE TERMS OF ANY
10
mandatory deferral under such plans or programs; provided, however, if necessary
to comply with Section 409A(a)(2)(B)(i) of the Code, and applicable
administrative guidance and regulations, such settlement shall be made on the
date that is six months plus one day following the Termination Date; and
(VII)
EXECUTIVE MAY ELECT CONTINUED PARTICIPATION AFTER TERMINATION IN
THE COMPANY'S HEALTH AND MEDICAL COVERAGE FOR HIMSELF AND HIS SPOUSE AND
DEPENDENT CHILDREN AFTER SUCH COVERAGE WOULD OTHERWISE END UNTIL SUCH TIME AS
EXECUTIVE BECOMES ELIGIBLE FOR MEDICARE; PROVIDED, HOWEVER, THAT IN THE EVENT OF
SUCH ELECTION, EXECUTIVE SHALL PAY THE COMPANY EACH YEAR AN AMOUNT EQUAL TO THE
THEN-CURRENT ANNUAL COBRA PREMIUM BEING PAID (OR PAYABLE) BY ANY OTHER FORMER
EMPLOYEE OF THE COMPANY.
FOR PURPOSES OF THIS AGREEMENT, A "NON-ORDINARY-COURSE GRANT OR AWARD" SHALL
MEAN ANY GRANT OR AWARD CONFERRING THE RIGHT TO ACQUIRE EQUITY-BASED SECURITIES
OF THE COMPANY, OTHER THAN A "NORMAL COURSE AWARD", AND A "NORMAL COURSE AWARD"
SHALL MEAN AND BE LIMITED TO A GRANT OR AWARD TO ACQUIRE EQUITY-BASED SECURITIES
OF THE COMPANY MADE UNDER THE ANNUAL EQUITY INCENTIVE PROGRAM OF THE COMPANY'S
MANAGEMENT INCENTIVE COMPENSATION PROGRAM, OR UNDER ANY AMENDED, REPLACEMENT OR
SUPPLEMENTAL PLAN OR PROGRAM THAT IS ESTABLISHED TO TAKE THE PLACE OF, MODIFY,
OR SUPPLEMENT SUCH EQUITY INCENTIVE PROGRAM (AS THE SAME MAY BE HEREAFTER
AMENDED, REPLACED OR SUPPLEMENTED), OR TO REINSTITUTE SUCH A PLAN OR PROGRAM, IN
ORDER TO CARRY OUT THE COMPANY'S REGULAR PROGRAM OF EQUITY GRANTS TO SENIOR
EXECUTIVES GENERALLY.
(B)
TERMINATION BY REASON OF DEATH.
IF EXECUTIVE DIES DURING THE
TERM, THE COMPANY SHALL PAY TO THE LAST BENEFICIARY DESIGNATED BY EXECUTIVE BY
WRITTEN NOTICE TO THE COMPANY OR, FAILING SUCH DESIGNATION, TO EXECUTIVE'S
ESTATE, THE FOLLOWING AMOUNTS:
(I)
THE PAYMENTS AND BENEFITS REFERRED TO IN CLAUSES (I) THROUGH
(III), INCLUSIVE, OF SECTION 5(A) (COLLECTIVELY, THE "STANDARD TERMINATION
PAYMENTS");
(II)
A LUMP SUM PAYMENT EQUAL TO (A) EXECUTIVE'S ANNUAL BASE SALARY,
PLUS (B) THE HIGHEST ANNUAL INCENTIVE COMPENSATION PAID TO EXECUTIVE IN RESPECT
OF THE TWO MOST RECENT FISCAL YEARS OF THE COMPANY BUT NOT MORE THAN EXECUTIVE'S
TARGET BONUS FOR THE YEAR OF TERMINATION, PAYABLE WITHIN 30 DAYS OF THE
TERMINATION DATE;
(III)
STOCK OPTIONS HELD BY EXECUTIVE AT TERMINATION, IF NOT THEN
VESTED AND EXERCISABLE, WILL BECOME FULLY