FORM OF WHICH IS ATTACHED HERETO AS EXHIBIT B (THE "RELEASE"), THE
COMPANY WILL PAY YOU A SEPARATION PAYMENT (THE "SEPARATION PAYMENT") CALCULATED
AS FOLLOWS: (I) IN THE EVENT THE TERMINATION DATE IS ON OR PRIOR TO THE ONE (1)
YEAR ANNIVERSARY OF THE COMMENCEMENT DATE, THE SEPARATION PAYMENT WILL BE AN
AMOUNT EQUAL TO ONE (1) YEAR OF YOUR THEN CURRENT ANNUAL BASE SALARY (AND, FOR
THE PURPOSE OF CLARITY, THE COMPANY ACKNOWLEDGES THAT YOU WILL NOT BE OBLIGATED
TO PAY BACK THE SIGNING BONUS); OR (II) IN THE EVENT THE TERMINATION DATE IS
BETWEEN THE FIRST ANNIVERSARY OF THE COMMENCEMENT DATE AND DECEMBER 31, 2008,
THE SEPARATION PAYMENT WILL BE AN AMOUNT EQUAL TO ONE (1) YEAR OF YOUR THEN
CURRENT ANNUAL BASE SALARY
PLUS THE ANNUAL BONUS (AS DEFINED HEREIN).
FOR
PURPOSES OF THE IMMEDIATELY PRECEDING SENTENCE, "ANNUAL BONUS" MEANS YOUR THEN
CURRENT ANNUAL BASE SALARY MULTIPLIED BY THE BONUS PERCENTAGE USED TO CALCULATE
THE BONUS AWARDED TO YOU FOR THE IMMEDIATELY PRECEDING YEAR AND PRORATED BASED
ON THE ELAPSED TIME BETWEEN DECEMBER 31 OF THE IMMEDIATELY PRECEDING YEAR AND
THE TERMINATION DATE.
SUBJECT TO THE CODE SECTION 409A DEFERRAL PERIOD
DESCRIBED IN SECTION 7(E) BELOW, IF APPLICABLE, THIS SEPARATION PAYMENT WILL BE
PAYABLE MONTHLY ON A PRO RATA BASIS OVER TWELVE (12) MONTHS AFTER SUCH
TERMINATION.
PAYMENT OF THIS SEPARATION PAYMENT WILL BE CONTINGENT ON YOUR
SIGNING THE RELEASE AND YOUR COMPLIANCE WITH THE TERMS OF THE PROPRIETARY
INFORMATION AND INVENTIONS AGREEMENT AND THE NONCOMPETITION PROVISIONS SET FORTH
IN SECTION 9 BELOW.
UPON TERMINATION OF YOUR EMPLOYMENT "WITHOUT CAUSE," OTHER
THAN THE OBLIGATIONS SET FORTH IN THE FIRST SENTENCE OF SECTION 7(A) ABOVE AND
THE ACCELERATION OF VESTING PROVIDED IN SECTION 4 ABOVE, THE COMPANY WILL HAVE
NO FURTHER OBLIGATION TO YOU EXCEPT PURSUANT TO THIS PARAGRAPH.
If your employment is terminated by the Company "with cause" as defined below,
the Company will have no further obligation to you under the terms of this
letter, other than the obligations set forth in the first sentence of Section
7(a) above.
However, and notwithstanding the termination of your employment by
the Company "with cause" or "without cause," or by you for "good reason," you
will continue to be obligated to comply with the terms of the Proprietary
Information and Inventions Agreement and if applicable, the noncompetition
provisions set forth in Section 9 below.
You have the right decline to receive a portion of the benefits set forth under
Sections 4 and 7 in the event that you determine that the provision of such
benefits to you would result in a "parachute payment" as such term is defined in
Section 280(G)(b)(2) of the Internal Revenue Code of 1986.
c.
Termination by Death or Disability.
If your employment is
terminated as a result of your death, the Company will be obligated to pay your
estate or beneficiaries (as the case may be) for services rendered by you for
the Company through the date of your death.
If your employment is