PRIOR TO THE OCCURRENCE OF SUCH CHANGE OF
CONTROL OVER THE EXERCISE PRICE PER SHARE OF SUCH OPTION OR SHARE APPRECIATION
RIGHT; SUCH AMOUNT TO BE PAYABLE IN CASH, IN ONE OR MORE KINDS OF PROPERTY
(INCLUDING THE PROPERTY, IF ANY, PAYABLE IN THE TRANSACTION) OR IN A COMBINATION
THEREOF, AS THE COMMITTEE, IN ITS DISCRETION, SHALL DETERMINE.
8.8.
EMPLOYMENT VIOLATION.
EACH SHARE OPTION
AGREEMENT EVIDENCING AN OPTION GRANTED HEREUNDER SHALL INCLUDE AND BE SUBJECT TO
THE FOLLOWING TERMS:
(A)
THE TERMS OF THIS SECTION 8.8 SHALL APPLY
TO THE OPTION IF THE OPTIONEE IS OR SHALL BECOME SUBJECT TO AN EMPLOYMENT
AGREEMENT WITH THE COMPANY.
(B)
IF THE OPTIONEE MATERIALLY BREACHES HIS OR
HER EMPLOYMENT AGREEMENT (IT BEING UNDERSTOOD THAT ANY BREACH OF THE
POST-TERMINATION OBLIGATIONS CONTAINED THEREIN SHALL BE DEEMED TO BE MATERIAL)
FOR SO LONG AS THE TERMS OF SUCH EMPLOYMENT AGREEMENT SHALL APPLY TO THE
OPTIONEE (EACH AN "EMPLOYMENT VIOLATION"), THE COMPANY SHALL HAVE THE RIGHT TO
REQUIRE (I) THE TERMINATION AND CANCELLATION OF THE UNEXERCISED PORTION OF THE
OPTION, IF ANY, WHETHER VESTED OR UNVESTED, AND (II) PAYMENT BY THE OPTIONEE TO
THE COMPANY OF THE RECAPTURE AMOUNT (AS DEFINED BELOW).
SUCH TERMINATION OF
UNEXERCISED OPTIONS AND PAYMENT OF THE RECAPTURE AMOUNT, AS THE CASE MAY BE,
SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER RIGHT OR REMEDY AVAILABLE
TO THE COMPANY ARISING OUT OF OR IN CONNECTION WITH ANY SUCH EMPLOYMENT
VIOLATION INCLUDING, WITHOUT LIMITATION, THE RIGHT TO TERMINATE OPTIONEE'S
EMPLOYMENT IF NOT ALREADY TERMINATED, SEEK INJUNCTIVE RELIEF AND ADDITIONAL
MONETARY DAMAGES.
(C)
"RECAPTURE AMOUNT" SHALL MEAN THE GROSS
GAIN REALIZED OR UNREALIZED BY THE OPTIONEE UPON EACH EXERCISE OF HIS OPTION
DURING THE PERIOD BEGINNING ON THE DATE WHICH IS TWELVE (12) MONTHS PRIOR TO THE
DATE OF THE OPTIONEE'S EMPLOYMENT VIOLATION AND ENDING ON THE DATE OF
COMPUTATION (THE "LOOK-BACK PERIOD"), WHICH GAIN SHALL BE CALCULATED AS THE SUM
OF:
(I)
IF THE OPTIONEE HAS EXERCISED ANY
PORTION OF HIS OPTION DURING THE LOOK-BACK PERIOD AND SOLD ANY OF THE SHARES
ACQUIRED ON EXERCISE THEREAFTER, AN AMOUNT EQUAL TO THE PRODUCT OF (X) THE SALES
PRICE PER SHARE SOLD MINUS THE EXERCISE PRICE PER SHARE TIMES (Y) THE NUMBER OF
SHARES AS TO WHICH THE OPTION WAS EXERCISED AND WHICH WERE SOLD AT SUCH SALES
PRICE; PLUS
(II)
IF THE OPTIONEE HAS EXERCISED ANY PORTION
OF HIS OPTION DURING THE LOOK-BACK PERIOD AND NOT SOLD ANY OF THE SHARES
ACQUIRED ON EXERCISE THEREAFTER, WITH RESPECT TO EACH OF SUCH SHARES AN AMOUNT
EQUAL TO THE PRODUCT OF (X) THE GREATEST OF THE FOLLOWING:
(1) THE FAIR MARKET
VALUE PER SHARE ON THE DATE OF EXERCISE, (2) THE ARITHMETIC AVERAGE OF THE PER
SHARE CLOSING SALES PRICES AS REPORTED ON NASDAQ FOR THE THIRTY (30) TRADING DAY
PERIOD ENDING ON THE TRADING DAY IMMEDIATELY PRECEDING THE DATE OF THE COMPANY'S
WRITTEN NOTICE OF ITS EXERCISE OF ITS RIGHTS UNDER THIS SECTION 8.8, OR (3) THE
10
ARITHMETIC AVERAGE