THE COMPANY AVAILABLE FOR EQUITY AWARDS, DURING THE
TERM, THE COMPANY SHALL GRANT TO EXECUTIVE NO LATER THAN MAY 1, 2009 (THE "2009
SPECIAL GRANT") AND APRIL 30, 2010 (THE "2010 SPECIAL GRANT" AND, COLLECTIVELY
WITH THE 2008 SPECIAL GRANT AND THE 2009 SPECIAL GRANT, THE "SPECIAL EQUITY
GRANTS" AND EACH, INDIVIDUALLY, A "SPECIAL EQUITY GRANT," WITH THE RESPECTIVE
DATE EACH SPECIAL EQUITY GRANT IS MADE BEING THE "GRANT DATE" THEREOF) AT LEAST
50,000 RESTRICTED STOCK UNITS AND AT LEAST 50,000 OPTIONS AS PART OF (AND NOT IN
ADDITION TO)_THE COMPENSATION OUTLINED IN SECTION 3(C) ABOVE.
EACH SPECIAL
EQUITY GRANT SHALL BE GRANTED UNDER AND SUBJECT TO THE TERMS AND CONDITIONS OF
THE COMPANY'S 2003 INCENTIVE COMPENSATION PLAN, AS AMENDED AND RESTATED, OR AN
APPLICABLE SUCCESSOR PLAN (IN EITHER CASE, THE "EQUITY PLAN") AND A RESTRICTED
STOCK UNIT AND OPTION AGREEMENT IN THE FORM ATTACHED HERETO AS EXHIBIT A TO BE
ENTERED INTO WITH RESPECT TO SUCH SPECIAL EQUITY GRANT BY AND BETWEEN THE
COMPANY AND EXECUTIVE (EACH, AN "EQUITY AGREEMENT"); PROVIDED, HOWEVER, THAT THE
PARTIES HEREBY AGREE, AND THE EQUITY AGREEMENTS SHALL RESPECTIVELY PROVIDE, THAT
THE OPTIONS COMPRISING THE SPECIAL EQUITY GRANTS SHALL HAVE AN EXERCISE PRICE
EQUAL TO 100% OF THE FAIR MARKET VALUE OF THE COMMON STOCK OF THE
3
COMPANY ON THE APPLICABLE GRANT DATE THEREOF, THAT ALL VESTED RESTRICTED STOCK
UNITS SHALL RECEIVE DIVIDEND EQUIVALENTS, AND THAT EACH SPECIAL EQUITY GRANT
SHALL VEST WITH RESPECT TO ONE-FOURTH (1/4) OF THE TOTAL AWARD ON EACH
ANNIVERSARY OF THE APPLICABLE GRANT DATE THEREOF, SUBJECT TO CERTAIN PROVISIONS
RELATING TO ACCELERATED VESTING AND FORFEITURE AS DESCRIBED IN THIS AGREEMENT,
THE APPLICABLE EQUITY AGREEMENT AND THE EQUITY PLAN; PROVIDED, FURTHER, HOWEVER,
THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE EQUITY PLAN, IN
THE EQUITY AGREEMENTS, IN THIS AGREEMENT OR IN ANY OTHER COMPANY PLAN OR POLICY,
IT IS HEREBY AGREED THAT THIS AGREEMENT (OR ANY WRITTEN AMENDMENT HERETO SIGNED
BY EXECUTIVE AND THE COMPANY THAT EXPRESSLY STATES THAT IT SUPERSEDES THIS
PROVISO) AND THE EQUITY AGREEMENT IN THE FORM OF EXHIBIT A HERETO CONTAIN THE
ONLY PROVISIONS REGARDING FORFEITURE THAT SHALL APPLY TO THE SPECIAL EQUITY
GRANTS.
IN EACH CASE, THE APPLICABLE EQUITY AGREEMENT SHALL PROVIDE THAT
DELIVERY TO EXECUTIVE OF SHARES OF COMPANY COMMON STOCK SUBJECT TO VESTED
RESTRICTED STOCK UNITS UNDER THE APPLICABLE SPECIAL EQUITY GRANT SHALL OCCUR ON
THE EARLIEST DATE ON WHICH SUCH SHARES MAY BE SO DELIVERED (A) WITHOUT BECOMING
SUBJECT TO TAXES, INTEREST OR PENALTIES AS A RESULT OF SECTION 409A
("SECTION 409A") OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
AND APPLICABLE ADMINISTRATIVE GUIDANCE AND REGULATIONS, AND (B) WITHOUT
AFFECTING ANY COMPENSATION DEDUCTION APPLICABLE THERETO AS A RESULT OF
SECTION 162(M) ("SECTION 162(M)"), BUT, NOTWITHSTANDING (A) AND (B) ABOVE, IN NO
EVENT SHALL SUCH SHARES BE DELIVERED (X) LATER THAN SIX (6) MONTHS PLUS ONE
(1) DAY AFTER THE DATE OF TERMINATION OF EXECUTIVE'S EMPLOYMENT (THE DATE OF
TERMINATION OF EXECUTIVE'S EMPLOYMENT, REGARDLESS OF THE GROUND