to any other grant of
restricted stock provided the Executive in connection with his employment
hereunder that is unvested on the Date of Termination, such restricted stock
shall vest in full on the Accelerated Vesting Date if its normal vesting date is
no more than eighteen (18) months from the Date of Termination and if its normal
vesting date is more than eighteen (18) months from the Date of Termination,
then fifty percent (50%) of the restricted stock grant shall vest on the
Accelerated Vesting Date.
Notwithstanding the foregoing, however, the terms of
any plan or agreement applicable to the Option, any Additional Options, the
Restricted Stock or any other restricted stock or restricted stock units, if
any, granted the Executive in connection with his employment shall govern the
acceleration of vesting except to the extent that the terms of this Agreement
are more favorable to the Executive.
(II)
CONDITIONS TO ELIGIBILITY FOR SEVERANCE
BENEFITS.
THE PROVISIONS OF CLAUSES (A) THROUGH (D) OF SECTION 5(D)(I) HEREOF
ARE REFERRED TO IN THE AGGREGATE HEREAFTER AS THE
"SEVERANCE BENEFITS."
THE
OBLIGATION OF THE COMPANY TO PROVIDE THE EXECUTIVE THE SEVERANCE BENEFITS, OR
ANY OF THEM, IS CONDITIONED ON THE EXECUTIVE SIGNING AND RETURN OF A TIMELY AND
EFFECTIVE RELEASE OF CLAIMS IN THE FORM ATTACHED TO THIS AGREEMENT AND MARKED
EXHIBIT A (THE "RELEASE OF CLAIMS") AND ON HIS CONTINUING TO MEET HIS
OBLIGATIONS UNDER THE EMPLOYEE AGREEMENT IN ACCORDANCE WITH ITS TERMS. THE
RELEASE OF CLAIMS THAT IS REQUIRED IN ORDER FOR THE EXECUTIVE TO QUALIFY FOR THE
SEVERANCE BENEFITS IN ACCORDANCE WITH SECTION 5(D) AND SECTION 5(E) OF THIS
AGREEMENT, FOR THE ENHANCED SEPARATION PAY AND CERTAIN OF THE SEVERANCE BENEFITS
IN ACCORDANCE WITH SECTION 5(G) HEREOF OR FOR ACCELERATED VESTING OF THE OPTION
IN ACCORDANCE WITH SECTION 4(C)(IV) HEREOF CREATES LEGALLY BINDING OBLIGATIONS
ON THE PART OF THE EXECUTIVE AND THE COMPANY
10
therefore advises the Executive to consult an attorney before signing the
release of claims in any of the foregoing circumstances.
(e)
By the Executive for Good Reason.
(i)
The Executive may terminate his
employment hereunder for Good Reason (A) by providing notice to the Company
specifying in reasonable detail the condition giving rise to the Good Reason no
later than thirty (30) days following the occurrence of that condition; (B) by
providing the Company thirty (30) days to remedy the condition and so specifying
in the notice and (C) by terminating his employment for Good Reason within
thirty (30) days following the expiration of the period to remedy if the Company
fails to remedy the condition.
(II)
FOR PURPOSES OF THIS AGREEMENT, "GOOD
REASON" SHALL MEAN THE OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING CONDITIONS
WITHOUT THE EXECUTIVE'S CONSENT:
(A) FAILURE OF THE COMPANY TO APPOINT OR ELECT
THE EXECUTIVE AS PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN IN ACCORDANCE
WITH SECTION 3(A) HEREOF OR TO CONTINUE THE EXECUTIVE IN THOSE POSITIONS AND
OFFICES AT ANY TIME DURING THE TERM HEREOF FOLLOWING SUCH APPOINTMENT