PAYMENT EQUAL TO TWELVE (12) MONTHS
BASE SALARY IN EFFECT AS OF THE DATE OF TERMINATION, PAYABLE OVER A PERIOD OF
TWELVE (12) MONTHS BEGINNING ON THE FIRST DAY OF THE MONTH FOLLOWING THE DATE OF
TERMINATION, IN ACCORDANCE WITH THE COMPANY'S NORMAL PAYROLL PRACTICES;
(II)
THE COMPANY SHALL MAINTAIN IN FULL FORCE AND EFFECT AND PAY ALL
RELATED EXPENSES FOR THE CONTINUED BENEFIT OF YOU AND YOUR DEPENDANTS UNTIL THE
EARLIER OF TWELVE (12) MONTHS FOLLOWING YOUR TERMINATION, OR THE DATE YOU ACCEPT
OTHER EMPLOYMENT AND OBTAIN, THE EQUIVALENT OF ALL LIFE, DISABILITY, ACCIDENT,
HEALTH INSURANCE AND OTHER EMPLOYEE BENEFIT PLANS, PROGRAMS, BENEFITS OR
ARRANGEMENTS IN WHICH YOU WERE ENTITLED TO PARTICIPATE IMMEDIATELY PRIOR TO SUCH
DATE PROVIDED THAT YOUR CONTINUED PARTICIPATION IS POSSIBLE UNDER THE GENERAL
TERMS AND PROVISIONS OF SUCH PLANS AND PROGRAMS. NO DEDUCTION FOR ANY EXPENSES
RELATED TO THE BENEFITS DESCRIBED IN THIS SECTION SHALL BE MADE FROM YOUR BASE
SALARY DURING THE PERIOD AFTER TERMINATION FOR WHICH YOU ARE ELIGIBLE FOR SUCH
BENEFITS. IN THE EVENT THAT YOUR PARTICIPATION IN ANY SUCH PLAN OR PROGRAM IS
BARRED, THE COMPANY SHALL ARRANGE TO PROVIDE YOU WITH BENEFITS SUBSTANTIALLY
SIMILAR TO THOSE WHICH YOU WERE ENTITLED TO RECEIVE UNDER SUCH PLANS AND
PROGRAMS IMMEDIATELY PRIOR TO YOUR TERMINATION, PROVIDED THAT ANY REDUCTION OF
BENEFITS WHICH CONSTITUTED A BASIS FOR YOUR TERMINATION OF EMPLOYMENT FOR GOOD
REASON SHALL NOT BE TAKEN INTO ACCOUNT FOR PURPOSES OF DETERMINING YOUR
CONTINUED BENEFITS UNDER THIS SUBSECTION;
(III)
YOU SHALL RECEIVE THE CASH BONUS AMOUNT EARNED BY YOU AS THOUGH YOU
AND THE COMPANY MET THE PERFORMANCE OBJECTIVES REQUIRED BY THE BOARD OF
DIRECTORS FOR PAYMENT OF SUCH BONUS AMOUNT FOR THE REMAINDER OF THE PLAN YEAR IN
WHICH THE CHANGE OF CONTROL OCCURS.
5
D.
AS OF THE EFFECTIVE DATE, YOU HOLD OPTIONS TO PURCHASE 1,000,000 SHARES
OF THE COMPANY'S COMMON STOCK ALL OF WHICH WERE ISSUED OUTSIDE THE COMPANY'S
STOCK INCENTIVE PLAN AND ARE FULLY VESTED AND EXERCISABLE (NON-PLAN OPTIONS).
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY OR WITHOUT RESPECT TO THE NATURE
OF TERMINATION, THE NON-PLAN OPTIONS HAVE NO EXPIRATION DATE, IN ACCORDANCE WITH
THEIR TERMS.
E.
THE COMPANY'S OBLIGATION TO MAKE THE SEPARATION PAYMENTS AS SET FORTH
HEREIN SHALL BE CONDITIONED UPON YOUR:
1.
EXECUTION OF A SEPARATION AND RELEASE AGREEMENT IN A FORM PREPARED BY
THE COMPANY WHEREBY YOU RELEASE THE COMPANY FROM ANY AND ALL LIABILITY AND
CLAIMS OF ANY KIND; AND
2.
COMPLIANCE WITH THE RESTRICTIVE COVENANTS (SECTIONS 8A, 8B AND 8C) AND
ALL POST-TERMINATION OBLIGATIONS CONTAINED IN THIS AGREEMENT.
The Company's obligation to make the separation payments set forth in this
Section 5 shall terminate immediately upon any breach by You of any
post-termination obligations to which You are subject.
6.
SET-OFF.
TO THE EXTENT PERMITTED BY CODE SECTION 409A, IF YOU HAVE
ANY OUTSTANDING OBLIGATIONS TO THE COMPANY AT THE TIME THIS AGREEMENT TERMINATES
FOR ANY REASON, YOU ACKNOWLEDGE THAT THE COMPANY IS AUTHORIZED TO DEDUCT ANY
AMOUNTS OWED TO THE COMPANY