Mr. Steven K. Burke
July 25, 2006
Page 4 of 9
or, if applicable, state insurance laws, the Company shall pay that portion of your COBRA premiums that the Company was paying prior to the effective date of termination for twelve (12) months following or for the continuation period for which Employee is eligible, whichever is shorter and in the event the continuation period is provided by state law and is less than twelve (12) months, pay to you the premium payments it would have made for the remainder of the twelve (12) month period (the COBRA Premiums); (iii) fifty percent (50%) of any unvested stock options or unvested restricted shares held by you shall vest in full upon the occurrence of the Constructive Termination, accelerated to one hundred percent (100%) vesting in the event Constructive Termination occurs within thirty (30) days prior to or One hundred eighty)180) days following a Corporate Transaction (as defined below); (iv) at your request, the post-termination exercise grace period set forth in your stock option agreements shall be extended to provide for an exercise period of up to 180 days following the Constructive Termination; provided, however, that such post-termination exercise grace period shall not be extended beyond the period of time that would enable the stock option to remain exempt under IRS Regulation 409A.
Any obligation of the Company to you in Paragraph 9(b) is conditioned upon you signing and returning to the Company a timely and effective release of claims in the form provided by the Company (the Release of Claims). The Release of Claims required for separation benefits in accordance with this Section 9(b) creates legally binding obligations on your part and the Company and its Affiliates therefore advise you to seek the advice of an attorney before signing it. The Severance Payments shall be payable and due as a lump sum and COBRA Premiums will commence thirty (30) days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by you, is received by the Company.
The following shall constitute Constructive Termination:
(i) failure of the Company to provide you Base Salary and benefits in accordance with the terms of this Agreement, excluding an inadvertent failure which is cured within ten (10) business days following written notice from you to the Company specifying in detail the nature of such failure;
(ii) failure of the Company, or a successor to the Company, to provide you with a position that is equivalent in title, total compensation (salary and bonus), benefits or responsibilities to your then current position within ninety (90) days of a Corporate Transaction resulting in a material diminution of your responsibilities, duties or authority. Diminution of your responsibilities shall NOT, however, include having the same general responsibilities in a division/business unit/subsidiary of any entity