BE PAID AT THE
RATE IN EFFECT AT THE TIME OF THE TERMINATION OF EMPLOYMENT.
(C)
UPON A CHANGE OF CONTROL. IN THE EVENT OF
THE OCCURRENCE OF A CHANGE IN CONTROL WHILE THE EXECUTIVE IS EMPLOYED BY THE
COMPANY:
(I)
THE EXECUTIVE SHALL IMMEDIATELY VEST IN
AN ADDITIONAL NUMBER OF SHARES UNDER ALL OUTSTANDING OPTIONS AS IF HE HAD
PERFORMED TWELVE (12) ADDITIONAL MONTHS OF SERVICE; AND
(II)
IF WITHIN TWELVE (12) MONTHS FOLLOWING THE
OCCURRENCE OF THE CHANGE OF CONTROL, ONE OF THE FOLLOWING EVENTS OCCURS:
(A) THE EXECUTIVE'S EMPLOYMENT IS TERMINATED BY THE COMPANY WITHOUT CAUSE; OR
(B) THE EXECUTIVE RESIGNS FOR GOOD REASON
THEN THE EXECUTIVE SHALL IMMEDIATELY VEST AS TO ALL SHARES UNDER ALL OUTSTANDING
OPTIONS AND THE COMPANY SHALL PAY THE EXECUTIVE, IN A LUMP SUM, AN AMOUNT EQUAL
TO:
(I) THE THEN CURRENT YEAR'S TARGET BONUS PRORATED FOR THE NUMBER OF DAYS OF
EXECUTIVE IS EMPLOYED IN SAID YEAR; (II) ONE YEAR'S BASE SALARY; AND (III) THE
GREATER OF THE THEN CURRENT YEAR'S TARGET BONUS OR THE ACTUAL PRIOR YEAR'S
BONUS.
THE EXECUTIVE'S BASE SALARY SHALL BE PAID AT THE RATE IN EFFECT AT THE
TIME OF THE TERMINATION OF EMPLOYMENT.
(D)
HEALTH INSURANCE.
IF SUBSECTION (B) OR
(C) ABOVE APPLIES, AND IF THE EXECUTIVE ELECTS TO CONTINUE HIS HEALTH INSURANCE
COVERAGE UNDER THE CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT OF 1985, AS
AMENDED ("COBRA") FOLLOWING THE TERMINATION OF HIS EMPLOYMENT, THEN THE COMPANY
SHALL PAY THE EXECUTIVE'S MONTHLY PREMIUM UNDER COBRA UNTIL THE EARLIEST OF
(I) 12 MONTHS FOLLOWING THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT, OR
(II) THE DATE UPON WHICH THE EXECUTIVE COMMENCES EMPLOYMENT WITH AN ENTITY OTHER
THAN THE COMPANY.
(E)
DEFINITION OF "CAUSE."
FOR ALL PURPOSES
UNDER THIS AGREEMENT, "CAUSE" SHALL MEAN ANY OF THE FOLLOWING:
(I)
UNAUTHORIZED USE OR DISCLOSURE OF THE
CONFIDENTIAL INFORMATION OR TRADE SECRETS OF THE COMPANY;
(II)
ANY BREACH OF THIS AGREEMENT OR THE
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT BETWEEN THE EXECUTIVE
AND THE COMPANY;
(III)
CONVICTION OF, OR A PLEA OF "GUILTY" OR "NO
CONTEST" TO, A FELONY UNDER THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF;
(IV)
MISAPPROPRIATION OF THE ASSETS OF THE COMPANY
OR ANY ACT OF FRAUD OR EMBEZZLEMENT BY EXECUTIVE, OR ANY ACT OF DISHONESTY BY
EXECUTIVE IN CONNECTION WITH THE PERFORMANCE OF HIS DUTIES FOR THE COMPANY THAT
ADVERSELY AFFECTS THE BUSINESS OR AFFAIRS OF THE COMPANY; OR
(V)
INTENTIONAL MISCONDUCT OR THE EXECUTIVE'S
FAILURE TO SATISFACTORILY PERFORM HIS/HER DUTIES AFTER HAVING RECEIVED WRITTEN
NOTICE OF SUCH FAILURE AND AT LEAST THIRTY (30) DAYS TO CURE SUCH FAILURE.
The foregoing shall not be deemed an exclusive list of all acts or omissions
that the Company may consider as grounds for the termination of the Executive's
Employment.
(F)
DEFINITION OF "GOOD REASON."
FOR ALL
PURPOSES UNDER THIS AGREEMENT, THE EXECUTIVE'S RESIGNATION FOR "GOOD REASON"
SHALL MEAN THE EXECUTIVE'S RESIGNATION WITHIN NINETY (90) DAYS THE OCCURRENCE OF
ANY ONE OR MORE OF THE FOLLOWING EVENTS:
(I)