ANY
SUCH ACTIONS SHALL NOT BE A BREACH OF THIS AGREEMENT, BE CONSIDERED TO BE A
TERMINATION OF THE EXECUTIVE WITHOUT CAUSE OR CONSTITUTE AN EVENT OF "GOOD
REASON".
THE COMPANY SHALL CONTINUE TO COMPLY WITH ITS OBLIGATIONS UNDER
SECTION 3 DURING ANY PERIOD OF GARDEN LEAVE.
(B)
IN THE EVENT THE TERM AND THE EXECUTIVE'S
EMPLOYMENT IS TERMINATED BY (X) THE COMPANY FOR ANY REASON OTHER THAN CAUSE OR
DUE TO EXECUTIVE'S DISABILITY, (Y) EXECUTIVE FOR GOOD REASON OR (Z) THE
EXECUTIVE ON THE LAST DAY OF THE TERM FOLLOWING THE COMPANY'S DELIVERY OF A
NOTICE OF NON-RENEWAL IF, AND ONLY IF, THE EXECUTIVE PREVIOUSLY NOTIFIED THE
COMPANY IN WRITING OF HIS INTENTION TO SO TERMINATE AT LEAST 45 DAYS BEFORE THE
END OF THE TERM, EXECUTIVE SHALL BE ENTITLED TO RECEIVE
(I) THE AMOUNT OF
EXECUTIVE'S BASE SALARY AND EXPENSES ACCRUED WITH RESPECT TO THE PERIOD PRIOR TO
THE DATE OF TERMINATION OF EXECUTIVE'S EMPLOYMENT, TO THE EXTENT NOT PREVIOUSLY
PAID; (II) BONUS FOR THE PRIOR YEAR, IF ANY, THAT THE COMPANY HAS DECLARED THAT
EXECUTIVE HAS EARNED BUT WHICH HAS NOT YET PAID; (III) A LUMP SUM CASH PAYMENT
IN AN AMOUNT EQUAL TO TWO MULTIPLIED BY THE SUM OF (A) THE AMOUNT OF EXECUTIVE'S
ANNUAL BASE SALARY AS OF THE DAY IMMEDIATELY PRECEDING THE DATE OF SUCH
TERMINATION, AND (B) THE AVERAGE ANNUAL BONUS EARNED BY EXECUTIVE DURING THE TWO
MOST RECENTLY COMPLETED FISCAL YEARS OF THE COMPANY (IT BEING UNDERSTOOD THAT IF
EXECUTIVE IS TERMINATED AFTER THE END OF A FISCAL YEAR BUT BEFORE THE DATE ON
WHICH BONUSES FOR SUCH YEAR HAVE BEEN PAID TO SENIOR EXECUTIVES OF THE COMPANY,
EXECUTIVE'S AVERAGE BONUS SHALL BE CALCULATED USING THE TWO FISCAL YEARS
IMMEDIATELY PRECEDING SUCH YEAR) ("AVERAGE BONUS") AND; (IV) CONTINUED MEDICAL
COVERAGE AT ACTIVE EMPLOYEE RATES FOR THE 24 MONTH PERIOD
9
FOLLOWING SUCH TERMINATION OR, IF EARLIER, UNTIL EXECUTIVE RECEIVES OTHER
EMPLOYER-PROVIDED COVERAGE. IN ADDITION, ANY AND ALL OUTSTANDING RSUS AND STOCK
OPTIONS GRANTED TO EXECUTIVE THAT ARE SUBJECT TO VESTING BASED SOLELY AND
EXCLUSIVELY ON THE CONTINUED PERFORMANCE OF SERVICES BY EXECUTIVE ("TIME-BASED
AWARDS") THAT ARE UNVESTED SHALL IMMEDIATELY VEST AND, IF APPLICABLE, BECOME
EXERCISABLE IN FULL UPON THE DATE OF SUCH TERMINATION AND ANY OUTSTANDING
TIME-BASED AWARDS THAT ARE STOCK OPTIONS SHALL REMAIN EXERCISABLE FOR THREE (3)
MONTHS AFTER THE DATE OF SUCH TERMINATION; PROVIDED THAT ALL VESTED OPTIONS
ISSUED PURSUANT TO THE 2004 EQUITY INCENTIVE PLAN WILL REMAIN EXERCISABLE UNTIL
THE LATER OF (I) 2 1/2 MONTHS AFTER THE DATE SUCH OPTIONS WOULD NORMALLY EXPIRE
AND (II) THE LAST DAY OF THE YEAR IN WHICH THE EXECUTIVE IS TERMINATED.
THE RSU
GRANT SET FORTH IN SECTION 3(C) AND ANY OTHER OUTSTANDING EQUITY AWARDS GRANTED
TO EXECUTIVE THAT ARE SUBJECT TO VESTING, IN WHOLE OR IN PART, BASED ON THE
ACHIEVEMENT OF OBJECTIVE OR SUBJECTIVE PERFORMANCE CONDITIONS
("PERFORMANCE-BASED AWARDS") WILL VEST AND BECOME EXERCISABLE IN FULL ONLY
ACCORDING TO THE TERMS OF SUCH GRANT.
ANY AMOUNT PAYABLE OR BENEFIT PROVIDED