VESTED AND EXERCISABLE AT THE DATE OF
SUCH TERMINATION, EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROVIDED UNDER THE
TERMS OF ANY NON-ORDINARY COURSE GRANT OR AWARD MADE TO EXECUTIVE AFTER DECEMBER
31, 2005, AND ANY SUCH OPTIONS SHALL REMAIN EXERCISABLE UNTIL THE EARLIER OF
THREE YEARS AFTER THE DATE OF SUCH TERMINATION OR THE SCHEDULED EXPIRATION DATE,
AND, IN OTHER RESPECTS, ALL SUCH OPTIONS SHALL BE GOVERNED BY THE PLANS AND
PROGRAMS AND THE AGREEMENTS AND OTHER DOCUMENTS PURSUANT TO WHICH SUCH OPTIONS
WERE GRANTED; AND
11
(IV)
EXCEPT TO THE EXTENT OTHERWISE SPECIFICALLY PROVIDED UNDER THE
TERMS OF ANY NON-ORDINARY COURSE GRANT OR AWARD MADE TO EXECUTIVE AFTER DECEMBER
31, 2005, ALL DEFERRED STOCK, RESTRICTED STOCK AND OTHER EQUITY-BASED AWARDS
WILL BECOME FULLY VESTED AND NON-FORFEITABLE, AND ALL RESTRICTIONS AND
CONDITIONS WITH RESPECT TO SUCH AWARDS SHALL LAPSE, AND ALL SUCH AWARDS AND
ARRANGEMENTS WILL BE SETTLED IN ACCORDANCE WITH THE PLANS AND PROGRAMS UNDER
WHICH THE AWARDS WERE GRANTED OR GOVERNING SUCH ARRANGEMENTS INCLUDING, IF SO
PERMITTED BY THE PLANS OR PROGRAMS, EXECUTIVE'S DULY EXECUTED DEFERRAL ELECTION
FORMS OR THE TERMS OF ANY MANDATORY DEFERRAL UNDER SUCH PLANS OR PROGRAMS.
(C)
TERMINATION BY THE COMPANY FOR CAUSE.
THE COMPANY MAY TERMINATE
EXECUTIVE'S EMPLOYMENT HEREUNDER FOR CAUSE BY GIVING A CAUSE TERMINATION NOTICE
(AS DEFINED BELOW) IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS
SECTION 5(C).
FOR PURPOSES OF THIS AGREEMENT, THE TERM "CAUSE" SHALL MEAN
EXECUTIVE'S GROSS MISCONDUCT (AS DEFINED HEREIN) OR WILLFUL AND MATERIAL BREACH
OF SECTION 6.1(A) (OTHER THAN THE FIRST SENTENCE THEREOF), 6.1(B), 6.2 (OTHER
THAN THE FIRST AND PENULTIMATE SENTENCES THEREOF) OR 6.3.
"GROSS MISCONDUCT"
SHALL MEAN (I) EXECUTIVE'S CONVICTION (INCLUDING CONVICTION ON A NOLO CONTENDERE
PLEA) IN A COURT OF LAW OF A FELONY, OR (II) EXECUTIVE'S WILLFUL AND CONTINUED
FAILURE SUBSTANTIALLY TO PERFORM HIS MATERIAL DUTIES UNDER THIS AGREEMENT.
FOR
PURPOSES OF THIS AGREEMENT, AN ACT OR FAILURE TO ACT ON EXECUTIVE'S PART SHALL
BE CONSIDERED "WILLFUL" IF IT WAS DONE OR OMITTED TO BE DONE BY HIM KNOWINGLY,
PURPOSEFULLY AND NOT IN GOOD FAITH AND SHALL NOT INCLUDE, WITHOUT LIMITATION,
ANY ACT OR FAILURE TO ACT RESULTING FROM ANY DISAGREEMENT OR DIFFERENCE OF VIEWS
BETWEEN EXECUTIVE AND ONE OR MORE DIRECTORS OR OFFICERS OF THE COMPANY OR ANY OF
ITS AFFILIATES WITH RESPECT TO ANY MATTER(S) RELATING TO THE BUSINESS, AFFAIRS
OR OPERATIONS OF THE COMPANY AND/OR ANY OF ITS AFFILIATES (INCLUDING, WITHOUT
LIMITATION, WITH RESPECT TO ANY MANAGEMENT, BUSINESS OR OPERATIONAL MATTER,
STRATEGY, PLAN, PROPOSAL, INITIATIVE OR DECISION, ANY ISSUE REGARDING THE
HIRING, FIRING, APPOINTMENT OR REMOVAL OF ANY DIRECTOR, OFFICER, EMPLOYEE,
AGENT, CONSULTANT, ADVISOR OR CONTRACTOR, ANY PROPOSED TRANSACTION, VENTURE,
AFFILIATION OR ALLIANCE, OR ANY CHANGE IN BUSINESS, STRUCTURE, ORGANIZATION,
MANAGEMENT OR OPERATIONS).
EXECUTIVE MAY NOT BE TERMINATED FOR CAUSE UNLESS AND
UNTIL THERE SHALL HAVE BEEN DELIVERED TO HIM, WITHIN NINETY (90) DAYS AFTER THE
COMPANY FIRST HAD ACTUAL KNOWLEDGE OF THE MOST RECENT CONDUCT OR EVENT
COMPRISING AN ELEMENT OF THE ALLEGED GROUND FOR