the other in
writing in accordance herewith.
Notice and communications shall be effective
when actually received by the addressee.
(C)
IN THE EVENT OF A CHANGE IN CONTROL, ALL STOCK-BASED AWARDS SHALL
VEST IN FULL, IN EACH CASE IMMEDIATELY PRIOR TO THE OCCURRENCE OF SUCH CHANGE IN
CONTROL, AND ANY APPLICABLE PERFORMANCE-BASED VESTING GOALS WITH RESPECT TO SUCH
STOCK-BASED AWARDS GRANTED TO THE EXECUTIVE SHALL BE DEEMED SATISFIED AT THE
TARGET LEVEL; PROVIDED, HOWEVER, THAT (I) ANY LTIP
16
PERFORMANCE SHARES AWARDED UNDER THE COMPANY'S 2005 EQUITY AND PERFORMANCE
INCENTIVE PLAN AND (II) ANY STOCK OPTIONS WHICH VEST UPON THE ATTAINMENT OF A
CERTAIN PER-SHARE TRANSACTION PRICE IN CONNECTION WITH A CHANGE IN CONTROL
GRANTED UNDER THE COMPANY'S 2005 EQUITY AND PERFORMANCE INCENTIVE PLAN, WILL, IN
EACH CASE, VEST PURSUANT TO THE TERMS OF THE APPLICABLE AWARD AGREEMENT,
NOTWITHSTANDING THE PROVISION OF ANY AWARD AGREEMENT REQUIRING THAT MARKET
CONDITIONS EXIST FOR A SPECIFIED DURATION OF TIME.
FOR PURPOSE OF THIS SECTION
11(C), STOCK-BASED AWARDS SHALL INCLUDE STOCK OPTIONS, RESTRICTED SHARES,
RESTRICTED UNITS AND ANY OTHER EQUITY-BASED COMPENSATION AWARDS.
NOTWITHSTANDING THE DEFINITION OF "CHANGE IN CONTROL" OR "CHANGE OF CONTROL" IN
ANY AGREEMENT, PLAN OR ARRANGEMENT GOVERNING SUCH STOCK-BASED AWARDS, THE
DEFINITION OF CHANGE IN CONTROL IN THIS AGREEMENT SHALL SUPERSEDE SUCH
DEFINITIONS IN ALL RESPECTS WITH RESPECT TO SUCH STOCK-BASED AWARDS.
(D)
THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS
AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION
OF THIS AGREEMENT.
(E)
THE COMPANY MAY WITHHOLD FROM ANY AMOUNTS PAYABLE UNDER THIS
AGREEMENT SUCH UNITED STATES FEDERAL, STATE OR LOCAL OR FOREIGN TAXES AS SHALL
BE REQUIRED TO BE WITHHELD PURSUANT TO ANY APPLICABLE LAW OR REGULATION.
(F)
THE EXECUTIVE'S OR THE COMPANY'S FAILURE TO INSIST UPON STRICT
COMPLIANCE WITH ANY PROVISION OF THIS AGREEMENT OR THE FAILURE TO ASSERT ANY
RIGHT THE EXECUTIVE OR THE COMPANY MAY HAVE HEREUNDER, INCLUDING, WITHOUT
LIMITATION, THE RIGHT OF THE EXECUTIVE TO TERMINATE EMPLOYMENT FOR GOOD REASON
PURSUANT TO SECTIONS 4(C)(1) THROUGH 4(C)(5), SHALL NOT BE DEEMED TO BE A WAIVER
OF SUCH PROVISION OR RIGHT OR ANY OTHER PROVISION OR RIGHT OF THIS AGREEMENT.
(G)
THE EXECUTIVE AND THE COMPANY ACKNOWLEDGE THAT, EXCEPT AS MAY
OTHERWISE BE PROVIDED UNDER ANY OTHER WRITTEN AGREEMENT BETWEEN THE EXECUTIVE
AND THE COMPANY, THE EMPLOYMENT OF THE EXECUTIVE BY THE COMPANY IS "AT WILL"
AND, SUBJECT TO SECTION 1(A), PRIOR TO THE EFFECTIVE DATE, THE EXECUTIVE'S
EMPLOYMENT MAY BE TERMINATED BY EITHER THE EXECUTIVE OR THE COMPANY AT ANY TIME
PRIOR TO THE EFFECTIVE DATE, IN WHICH CASE THE EXECUTIVE SHALL HAVE NO FURTHER
RIGHTS UNDER THIS AGREEMENT.
FROM AND AFTER THE EFFECTIVE DATE, EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, THIS AGREEMENT SHALL SUPERSEDE ANY OTHER AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
(H)
WITHIN THE TIME PERIOD PERMITTED BY THE APPLICABLE DEPARTMENT OF
TREASURY REGULATIONS, THE COMPANY MAY, IN CONSULTATION WITH THE EXECUTIVE,
MODIFY THE AGREEMENT, IN THE LEAST RESTRICTIVE MANNER NECESSARY AND WITHOUT ANY
DIMINUTION