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