DUE TO EXECUTIVE'S DISABILITY OR (Y) BY EXECUTIVE FOR GOOD REASON, IN EACH CASE,
WITHIN THE ONE YEAR PERIOD IMMEDIATELY FOLLOWING A CHANGE IN CONTROL, EXECUTIVE
SHALL BE ENTITLED TO RECEIVE: THE BENEFITS PROVIDED IN SUBSECTIONS (I), (II),
(III) AND (IV) OF SECTION 5(B); PROVIDED THAT IN LIEU OF, AND NOT IN ADDITION
TO, THE SEVERANCE BENEFITS SPECIFIED SECTION 5(B)(III), EXECUTIVE SHALL BE
ENTITLED TO RECEIVE A CASH LUMP SUM PAYMENT EQUAL TO THE SUM OF (A) THREE
MULTIPLIED BY THE AMOUNT OF EXECUTIVE'S ANNUAL BASE SALARY AS OF THE DAY
IMMEDIATELY PRECEDING THE DATE OF SUCH TERMINATION AND (B) TWO MULTIPLIED BY
EXECUTIVE'S AVERAGE BONUS. IN ADDITION, ANY AND ALL OUTSTANDING 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.
ANY
OUTSTANDING PERFORMANCE-BASED AWARDS WILL VEST AND BECOME EXERCISABLE IN FULL
ONLY ACCORDING TO THE TERMS OF SUCH GRANT.
ANY AMOUNT PAYABLE OR BENEFIT
PROVIDED TO EXECUTIVE PURSUANT TO THIS SECTION 5(E) (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 B.
(F)
FOR PURPOSES OF THIS AGREEMENT:
(I)
THE BOARD OR 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 BOARD, THE BOARD DETERMINES BY A MAJORITY VOTE (EXCLUDING
EXECUTIVE IF HE IS THEN A MEMBER OF THE BOARD), 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) AFTER
WRITTEN NOTICE SPECIFYING SUCH FAILURE AND THE MANNER IN WHICH THE EXECUTIVE MAY
RECTIFY SUCH FAILURE IN THE FUTURE, IF RECTIFIABLE, (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) EXECUTIVE'S
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ENGAGING IN WILLFUL, INTENTIONAL MISCONDUCT THAT HAS RESULTED IN DAMAGE TO THE
COMPANY'S BUSINESS OR REPUTATION, (IV) EXECUTIVE HAVING BEEN INDICTED OR
CONVICTED OF, OR PLEADED GUILTY OR NOLO CONTENDERE TO, A FELONY OR OTHER CRIME
OF MORAL TURPITUDE, (V) EXECUTIVE HAVING ENGAGED IN FRAUD AGAINST THE COMPANY OR
HAVING INTENTIONALLY MISAPPROPRIATED COMPANY PROPERTY OR BREACHED ANY FIDUCIARY
DUTY OWED TO THE COMPANY THAT HAS A DETRIMENTAL EFFECT ON THE COMPANY'S
REPUTATION OR BUSINESS, (VI) A FAILURE BY EXECUTIVE TO COMPLY WITH A MATERIAL
WRITTEN EMPLOYMENT POLICY OR RULE OF THE COMPANY THAT