PAYMENT
EQUAL TO EXECUTIVE'S ANNUAL BONUS (INCLUDING THE CASH AND EQUITY COMPONENT OF
SUCH ANNUAL BONUS) FROM THE PRIOR YEAR BASED ON THE NUMBER OF DAYS OF THE
CURRENT YEAR EXECUTIVE HAS BEEN EMPLOYED BY THE COMPANY AND THE DENOMINATOR OF
WHICH IS 365;
(IV) CONTINUED MEDICAL COVERAGE AT ACTIVE-EMPLOYEE RATES FOR ONE
YEAR; AND (V) THE AMOUNT OF ANY BENEFITS AS ARE PAYABLE TO EXECUTIVE (OR HIS
PERSONAL REPRESENTATIVE) BY REASON OF SUCH DEATH OR DISABILITY UNDER THE TERMS
OF ANY EMPLOYEE PLAN OR INSURANCE PROGRAM MAINTAINED BY THE COMPANY AND IN WHICH
EXECUTIVE WAS A PARTICIPANT. IN ADDITION, ANY AND ALL OUTSTANDING RSUS
PREVIOUSLY GRANTED TO EXECUTIVE AS PART OF ANY ANNUAL BONUS SHALL IMMEDIATELY
VEST.
ANY AMOUNT PAYABLE TO EXECUTIVE PURSUANT TO CLAUSE (III) AND (IV) OF THIS
SECTION 5(D) SHALL BE PAID TO EXECUTIVE ONLY IN THE EVENT THAT HE (OR HIS
PERSONAL REPRESENTATIVE AS THE CASE MAY BE) EXECUTES A RELEASE OF LIABILITY IN
FAVOR OF THE COMPANY IN A FORM SATISFACTORY TO THE COMPANY.
(E)
IN THE EVENT THE TERM AND EXECUTIVE'S
EMPLOYMENT IS TERMINATED (X) BY THE COMPANY FOR ANY REASON OTHER THAN CAUSE OR
(Y) BY EXECUTIVE FOR GOOD REASON, IN EACH CASE, WITHIN THE ONE YEAR PERIOD
IMMEDIATELY FOLLOWING A CHANGE IN CONTROL (THE "PROTECTION PERIOD"), EXECUTIVE
SHALL BE ENTITLED TO RECEIVE: THE STAY BONUS, TO THE EXTENT UNPAID, AND THE
BENEFITS PROVIDED IN SECTION 5(B); PROVIDED THAT IN LIEU OF, AND NOT IN ADDITION
TO, THE SEVERANCE BENEFITS SPECIFIED SECTION 5(B)(II), EXECUTIVE SHALL BE
ENTITLED TO RECEIVE A CASH LUMP SUM PAYMENT EQUAL TO THE SUM OF (A) TWO
MULTIPLIED BY THE AMOUNT OF EXECUTIVE'S ANNUAL BASE SALARY AS OF THE DAY
IMMEDIATELY PRECEDING THE DATE OF SUCH TERMINATION AND (B) A PRO RATED PORTION
OF EXECUTIVE'S AVERAGE BONUS BASED ON THE NUMBER OF DAYS THAT HAVE ELAPSED AS OF
EXECUTIVE'S DATE OF TERMINATION DURING THE RELEVANT CALENDAR YEAR.
ANY AMOUNT
PAYABLE OR BENEFIT PROVIDED TO EXECUTIVE PURSUANT TO THIS SECTION 5(D) (OTHER
THAN CLAUSE (I)) SHALL BE PAID OR PROVIDED TO EXECUTIVE ONLY IN THE EVENT THAT
HE EXECUTES AND DOES NOT REVOKE A RELEASE OF CLAIMS AGREEMENT SUBSTANTIALLY IN
THE FORM ATTACHED HERETO AS EXHIBIT A.
(F)
FOR PURPOSES OF THIS AGREEMENT:
(I)
THE CEO, IN THE EXERCISE OF GOOD FAITH
AND REASONABLE JUDGMENT, MAY TERMINATE THE TERM AND EXECUTIVE'S EMPLOYMENT FOR
"CAUSE" IF, AFTER GIVING EXECUTIVE NOTICE AND AN OPPORTUNITY TO BE HEARD BY THE
CEO, THE CEO DETERMINES THAT ANY OF THE FOLLOWING HAS OCCURRED:
(I) EXECUTIVE'S
WILLFUL AND CONTINUED FAILURE TO SUBSTANTIALLY PERFORM HIS MATERIAL DUTIES FOR
THE COMPANY (OTHER THAN DUE TO DISABILITY) FOLLOWING WRITTEN NOTICE SPECIFYING
SUCH FAILURE AND THE MANNER IN WHICH EXECUTIVE MAY RECTIFY SUCH FAILURE IN THE
FUTURE, IF RECTIFIABLE (IT BEING UNDERSTOOD THAT THE MANNER IN WHICH EXECUTIVE
MAY RECTIFY SUCH FAILURE MUST BE REASONABLE); (II) EXECUTIVE'S BREACH OF ANY
MATERIAL TERM OF THIS AGREEMENT THAT IS NOT CURED WITHIN 30 DAYS OF WRITTEN
NOTICE FROM THE COMPANY; (III)