EMPLOYMENT AGREEMENT

Employee Retention Agreement

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AMEDISYS INC | WILLIAM F. BORNE

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Title: EMPLOYMENT AGREEMENT
Date: 12/26/2007
Industry: Healthcare Facilities Sector: Healthcare

EMPLOYMENT AGREEMENT, Parties: amedisys inc , william f. borne

Exhibit 10.1

EXECUTION

EMPLOYMENT AGREEMENT

BY AND BETWEEN

AMEDISYS, INC.

AND

WILLIAM F. BORNE

DATED AS OF DECEMBER 19, 2007

TABLE OF CONTENTS


		Page

Section 1.	Recitals	1

Section 2.	Definitions	1

Section 3.	Term of Employment	4

Section 4.	Title, Position, Duties and Responsibilities	4

Section 5.	Base Salary; Target Bonus	5

Section 6.	Employee Incentive Compensation and Benefit Programs	5

Section 7.	Reimbursement of Business and Other Expenses; Perquisites	5

Section 8.	Termination of Employment	6

Section 9.	Forfeiture Provisions	14

Section 10.	Confidentiality; Cooperation with Regard to Litigation; Non-Disparagement; Return of Company Materials	15

Section 11.	Non-Competition/Prior Employment Covenants	17

Section 12.	Non-Solicitation of Employees and Customers	18

Section 13.	Remedies	18

Section 14.	Resolution of Disputes	19

Section 15.	Indemnification	20

Section 16.	Excise Taxes	21

Section 17.	Effect of Agreement on Other Benefits	22

Section 18.	Assignability; Binding Nature	22

Section 19.	Representation	23

Section 20.	Entire Agreement	23

Section 21.	Amendment or Waiver	23

Section 22.	Severability	23



Section 23.	Survivorship	23

Section 24.	Beneficiaries/References	24

Section 25.	Governing Law/Jurisdiction	24

Section 26.	Notices	24

Section 27.	Captions	24

Section 28.	Counterparts	25

Section 29.	Section 409A Compliance	25

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (the “ Agreement ”) is made and entered into as of the 19th day of December, 2007 (the “ Effective Date ”), by and between Amedisys, Inc., a Delaware corporation having its headquarters at 5959 South Sherwood Forest Boulevard, Baton Rouge, Louisiana, 70816 (“ Amedisys ” or the “ Company ”), and William F. Borne, having an address at 5512 Summerlake Drive, Baton Rouge, LA 70817 (the “ Executive ”).

RECITALS

WHEREAS , the Executive and the Company have entered into an employment agreement, dated April 1, 2005 (the “ Prior Agreement ”);

WHEREAS , the Company desires to continue to employ Executive as its Chief Executive Officer and Executive desires to accept such continued employment, pursuant to terms and conditions of this Agreement, which is intended to replace the Prior Agreement;

NOW, THEREFORE , in consideration of the premises and mutual covenants contained herein and for other good and valuable consideration, the receipt of which is mutually acknowledged, the Company and Executive (individually a “ Party ” and together the “ Parties ”) agree to be bound in accordance with the terms of this Agreement.

Section 1. Recitals . The above Recitals are incorporated herein by this reference.

Section 2. Definitions.

(a) The terms below are used in this Agreement, including the preamble and recitals, as so defined. As used herein, the following terms shall have the following meanings:

“ After-Tax Proceeds ” shall have the meaning set forth in Section 16.

“ After-Tax Proceeds With Cut-Back ” shall have the meaning set forth in Section 16.

“ Agreement ” shall have the meaning set forth in the preamble above.

“ Award ” shall have the meaning set forth in Section 9(a).

“ Award Gain ” shall have the meaning set forth in Section 9(a).

“ Base Amount ” shall have the meaning set forth in Section 16.

“ Base Salary ” shall have the meaning set forth in Section 5(a).

“ Beneficial Owner ” shall have the meaning set forth in Section 8(c).

“ Board ” shall have the meaning set forth in Section 5(a).

“ Cause ” shall have the meaning set forth in Section 8(b).

“ Change in Control ” shall have the meaning set forth in Section 8(c).

“COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1984.

“COBRA Period” shall have the meaning set forth in Section 8(c).

“ Code ” shall mean the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.

“ Committee ” shall have the meaning set forth in Section 5(a).

“ Company ” shall have the meaning set forth in the preamble above.

“ Confidential Information ” shall have the meaning set forth in Section 10(c).

“ Contingent Payments ” shall have the meaning set forth in Section 16.

“ Continued Participation Period ” shall have the meaning set forth in Section 8(c).

“ Disability ” shall have the meaning set forth in Section 8(a).

“ Effective Date ” shall have the meaning set forth in the preamble above.

“ Exchange Act ” shall have the meaning set forth in Section 8(c).

“ Excise Tax ” shall have the meaning set forth in Section 16.

“ Executive ” shall have the meaning set forth in the preamble above.

“ Fair Market Value ” shall have the meaning set forth in Section 6.

“ Final Determination ” shall have the meaning set forth in Section 16.

“ Forfeiture Event ” shall have the meaning set forth in Section 9.

“ 409A Payment Date ” shall have the meaning set forth in Section 8(j).

“ Good Reason ” shall have the meaning set forth in Section 8(c).

“ Gross-Up Amount ” shall have the meaning set forth in Section 16.

“ Independent Advisors ” shall have the meaning set forth in Section 16.

“ Party ” shall have the meaning set forth in the Recitals above.

“ Parties ” shall have the meaning set forth in the Recitals above.

“ Person ” shall have the meaning set forth in Section 8(c).

“ Prior Agreement ” shall have the meaning set forth in the Recitals above.

“ Proceeding ” shall have the meaning set forth in Section 15(a).

“ Restricted Area ” shall have the meaning set forth in Section 11(a).

“ Restriction Period ” shall have the meaning set forth in Section 11(b).

“ Retirement ” shall have the meaning set forth in Section 8(f).

“ Severance Period ” shall have the meaning set forth in Section 8(c).

“ Significant Subsidiary ” shall have the meaning set forth in Section 8(c).

“ Subsidiary ” shall have the meaning set forth in Section 10(d).

“ Target Bonus ” shall have the meaning set forth in Section 5(b).

“ Taxes ” shall have the meaning set forth in Section 16.

“ Term of Employment ” shall have the meaning set forth in Section 3(a).

“ Willful ” shall have the meaning set forth in Section 8(b).

(b) References to “Sections”, “Subsections”, and “Attachments” shall be to Sections, Subsections and Attachments, respectively, of this Agreement unless otherwise specifically provided. Any of the terms defined in Section 2(a) may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. In this Agreement, “hereof”, “herein”, “hereto”, “hereunder” and the like mean and refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which the respective word appears; words importing gender include the other gender; references to “writing” include printing, typing lithography and other means of reproducing words in a tangible or visible form; the words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; references to agreements and other contractual instruments shall be deemed to include subsequent amendments, assignments, and other modifications thereto, but only to the extent such amendments, assignments and other modifications are not prohibited by the terms of this Agreement; references to Parties include their respective permitted successors and assigns; and all

references to statutes and regulations shall include any amendments of same and any successor statutes and regulations.

Section 3. Term of Employment.

(a) The term of Executive’s employment under this Agreement shall commence on the Effective Date and expire on the third (3 ^rd ) anniversary thereof (the “ Term of Employment ”), unless terminated prior thereto in accordance herewith. This Agreement shall not be automatically renewable; however after the expiration of the Term of Employment, Executive’s employment shall continue on an “at will” basis. If following the expiration of the Term of Employment, there is a termination with Good Reason (as defined below) or a termination without Cause (as defined below), in either case, Executive shall be entitled to and his sole remedies under this Agreement shall be as set forth in Section 8(c).

(b) Notwithstanding anything in this Agreement to the contrary, at least one year prior to the expiration of the Term of Employment, upon the written request of the Company or Executive, the Parties shall meet to discuss this Agreement and may agree in writing to modify any of the terms of this Agreement.

Section 4. Title, Position, Duties and Responsibilities.

(a) Generally. Executive shall serve as Chief Executive Officer of the Company. Executive shall have and perform such duties, responsibilities, and authorities as are customary for the Chief Executive Officer of corporations of similar size and businesses as the Company as they may exist from time to time and as are consistent with such positions and status. Executive shall devote all of his business time and attention (except for periods of vacation or absence due to illness and other activities permitted pursuant to Section 4(b)), and his best efforts, abilities, experience, and talent to the position of Chief Executive Officer and for the Company’s businesses.

(b) Other Activities. Anything herein to the contrary notwithstanding, nothing in this Agreement shall preclude Executive from (i) serving on the boards of directors of a reasonable number of other corporations after prior consultation with and approval of the Board or the boards of a reasonable number of trade associations and/or charitable organizations, (ii) engaging in charitable activities and community affairs, and (iii) managing his personal investments and affairs, provided that such activities do not materially interfere with the proper performance of his duties and responsibilities under this Agreement.

(d) Rank of Executive Within Company. As Chief Executive Officer of the Company, Executive shall be the Company’s highest-ranking executive and Executive shall report directly to the Board.

(e) Board Membership. Until the expiration of the Term of Employment, the Company shall use its reasonable best efforts, to the extent not inconsistent with applicable laws, rules, regulations and good governance standards, to nominate and cause the election of Executive to the Board and to the Board’s Executive Committee, if one is constituted. If Executive is not elected to and serving on the Board at any time during the Term of Employment, Executive shall be entitled to terminate this Agreement and be entitled to the remedies provided in Section 8(c) for a termination without Cause. For so long as he is serving on the Board, Executive agrees to serve as a member of any committee of the Board to which he is elected. In any and all such capacities, Executive shall report only to the Board.

Section 5. Base Salary; Target Bonus.

(a) Executive shall be paid an annualized salary, payable in accordance with the regular payroll practices of the Company, of not less than $650,000 (“ Base Salary ”). The Base Salary shall be reviewed for increase (but not decrease) by the Compensation Committee (the “ Committee ”) of the Board of Directors of the Company (the “ Board ”) no less than annually.

(b) Executive shall be eligible to participate in an annual incentive plan with a target award opportunity approved from year to year by the Board. The amount of target annual incentive approved by the Board for any given year is herein referred to as the “ Target Bonus ”.

Section 6. Employee Incentive Compensation and Benefit Programs. During the Term of Employment, Executive shall be entitled to participate, in addition to the annual incentive plan referenced in Section 5(b), in such other incentive compensation, pension and welfare benefit plans and programs of the Company as are made available to the Company’s senior level executives or to its employees generally, as such plans or programs may be in effect from time to time, including, without limitation, deferral, health, medical, dental, long-term disability, travel accident and life insurance plans, subject to eligibility. The Company expressly retains the right to modify or terminate any such incentive compensation, pension and welfare benefit plans and programs in its sole discretion. In no case shall Executive be awarded any options or stock appreciation rights with an exercise price less than 100% of Fair Market Value. For purposes of this Agreement, Fair Market Value shall be equal to the price of the Company’s stock on the date of grant of such award as determined pursuant to the related award.

Section 7. Reimbursement of Business and Other Expenses; Perquisites.

(a) Reimbursement. Executive is authorized to incur reasonable expenses in carrying out his duties and responsibilities under this Agreement, and the Company shall promptly reimburse him for all such business expenses incurred in connection therewith, subject to documentation in accordance with the Company’s policy.

(b) Automobile Expenses. Until the expiration of this Term or earlier termination of this Agreement, the Company shall (i) provide Executive with the full and exclusive use of an automobile equivalent to the automobile used by Executive as of the Effective Date, or the Company shall provide Executive with an equivalent automobile allowance to be utilized by Executive at his sole discretion, and (ii) pay all maintenance, insurance, and gasoline expenses

incidental to the automobile, whether or not business related. Executive shall have the right to receive a new automobile on or about the second anniversary of the date on which he took possession of the then current automobile. Upon termination of this Agreement, if Executive is entitled to the benefits of either Section 8(c) or Section 8(e) of this Agreement, the Company shall transfer title to Executive, without payment therefor, of the Company’s automobile that Executive is then utilizing (and the value thereof will be reported as additional compensation to Executive.)

(c) Life Insurance Benefits. The Company shall pay the premium directly, or shall reimburse Executive, in his discretion, on a whole life insurance policy on the life of Executive with a face value to be determined in the sole discretion of Executive, which premium shall not exceed $25,000 per year. Such obligation to pay the premium shall continue until the expiration of the Term or earlier termination of this Agreement and any applicable severance period. Executive shall have the right to designate the beneficiaries of such policy and shall be the owner thereof. If Executive notifies the Company that he has elected for the Company to pay the premiums directly, the Company shall pay all premiums on such life insurance policy at least five (5) days before the end of any grace period, and on demand provide Executive due proof of such payment. The insurance company issuing such policy shall be authorized to give Executive, upon his request, any information regarding the status of any such policy. Any dividend declared upon such policy shall be applied to the premium. The company issuing the insurance policy must be at least “AA” in the “Best” ratings and be duly licensed to issue such policy.

(d) Whole Life Assignee. The Company and/or Executive, shall, at the direction of Executive, instruct New York Life Insurance Company to designate a person of Executive’s choosing as assignee of the cash value of Policy Number 43900679. Executive shall be entitled to exercise his right to the cash redemption value of said policy upon the expiration or earlier termination of this Agreement or upon his election, either at the sole discretion of Executive.

(e) Tax Preparation . Until the expiration of the Term or earlier termination of this Agreement and any applicable severance period, the Company will reimburse Executive for the cost of tax and financial preparation and planning, including services that may be requested by Executive from time to time pertaining to this Agreement, which shall be limited to $2,500 per year.

Section 8. Termination of Employment.

(a) Termination Due to Death or Disability. In the event Executive’s employment with the Company is terminated due to his death or Disability (as defined below), the Executive, his estate or his beneficiaries, as the case may be, shall be entitled to, and his or their sole remedies under this Agreement shall be:

(i)

Base Salary through the date of death or Disability, which shall be paid in a single lump sum not later than 15 days following Executive’s death or Disability;

(ii)

the balance of any incentive awards earned as of December 31 of the prior year (but not yet paid), which shall be paid in a single lump sum not later than 15 days following Executive’s death or Disability;

(iii)

the immediate vesting of all unvested equity awards held by Executive in existence as of the date of this Agreement; and

(iv)

all other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.

For purposes of this Agreement, the term “ Disability ” means the Executive’s inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months.

(b) Termination by the Company for Cause.

(i)

“ Cause ” shall mean:

(A)

Executive’s willful and material breach of Sections 10, 11 or 12 of this Agreement;

(B)

Executive is convicted of, or enters a plea of nolo contendere to, a felony;

(C)

Executive engages in conduct that constitutes willful gross neglect or willful gross misconduct in carrying out his duties under this Agreement, willful violation of the Company’s code of conduct, or fails to follow reasonable and lawful directives of the Board which are consistent with this Agreement resulting, in either case, in material harm to the financial condition or reputation of the Company; or

(D)

Executive engages in an act or series of acts constituting misconduct resulting in a misstatement of the Company’s financial statements due to material non-compliance with any financial reporting requirement within the meaning of Section 304 of The Sarbanes Oxley Act of 2002.

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 not in good faith, and shall not include any act or failure to act resulting from any incapacity of Executive.

(ii)

A termination for Cause shall not take effect until a determination by the Board that, in its judgment, grounds for termination of the Executive for Cause exist.

(iii)

In the event the Company terminates Executive’s employment for Cause, he shall be entitled to and his sole remedies under this Agreement shall be:

(A)

Base Salary through the date of the termination of his employment for Cause, which shall be paid in a single lump sum not later than 15 days following Executive’s termination of employment;

(B)

any incentive awards earned as of December 31 of the prior year (but not yet paid), which shall be paid in a single lump sum not later than 15 days following Executive’s termination of employment; and

(C)

other or additional benefits then due or earned in accordance with applicable plans or programs of the Company.

(c) Termination Without Cause or Termination With Good Reason Prior to a Change in Control. In the event Executive’s employment with the Company is terminated without Cause (meaning Executive’s employment is terminated by the Company for any reason other than Cause (as defined in Section 8(b) or due to death or Disability), which termination shall be effective as of the date specified by the Company in a written notice to Executive, or in the event there is a termination with Good Reason (as defined below), in either case prior to a Change in Control (as defined below), Executive shall be entitled to and his sole remedies under this Agreement shall be as follows:

(i)

Base Salary through the date of termination of Executive’s employment, which shall be paid in a single lump sum not later than 15 days following Executive’s termination of employment;

(ii)

an amount equal to 2 times the sum of (A) the Base Salary, at the annualized rate in effect on the date of termination of Executive’s employment (or in the event a reduction in Base Salary is a basis for a termination with Good Reason, then the Base Salary in effect immediately prior to such reduction), and (B) the greater of (x) the Target Bonus for the year of termination or (y) the actual prior year bonus, which amount shall be payable monthly in accordance with the Company’s payroll practices for a period of 24 months following such termination (the “ Severance Period ”) unless otherwise required to be paid in accordance with Section 8(j);

(iii)

(iv)

continued participation in the medical plan at the same benefit level at which he was participating on the date of the termination of his employment during the applicable time period allowed for continuation of coverage under COBRA (the “ COBRA Period ”) until the earlier of the expiration of the Severance Period or the date on which Executive receives substantially comparable coverage and benefits under the medical plan of a subsequent employer (the “Continued Participation Period” ); provided, however, if the COBRA period terminates prior to the expiration of the Continued Participation Period, during the remainder of the Continued Participation Period Executive will not be entitled to continued participation in the medical plan and the Company will pay directly to Executive, on a monthly basis, an amount equal to the amount previously expended monthly by the Company for his continued participation in the medical plan, and

(v)

other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.

A termination with “ Good Reason ” shall mean a termination of Executive’s employment at his initiative as provided in this Section 8(c) following the occurrence, without Executive’s written consent, of one or more of the following events (except as a result of a prior termination):

(A)

a material reduction in the Executive’s Base Salary;

(B)

a relocation of the corporate offices of the Company outside a 50-mile radius of Baton Rouge, Louisiana;

(C)

a material diminution of Executive’s authority, responsibilities or duties;

(D)

any action or inaction occurs which causes a material breach by the Company of its obligations under this Agreement.

For purposes of this Agreement, Good Reason shall not be deemed to have occurred unless Executive provides the Company with notice of one of the conditions described above within 90 days of the existence of the condition, and the Company is provided at least 30 days to cure the condition.

A “ Change in Control ” shall be deemed to have occurred if:

(i)

any Person (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of

the Company immediately prior to the occurrence with respect to which the evaluation is being made in substantially the same proportions as their ownership of the common stock of the Company) becomes the Beneficial Owner (except that a Person shall be deemed to be the Beneficial Owner of all shares that any such Person has the right to acquire pursuant to any agreement or arrangement or upon exercise of conversion rights, warrants or options or otherwise, without regard to the sixty day period referred to in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company or any Significant Subsidiary (as defined below), representing 50% or more of the combined voting power of the Company’s or such subsidiary’s then outstanding securities;

(ii)

during any 12-month period, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii), or (iv) of this paragraph) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the 12-month period or whose election or nomination for election was previously so approved but excluding for this purpose any such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than the Board, cease for any reason to constitute at least a majority of the Board;

(iii)

the consummation of a merger or consolidation of the Company or any subsidiary owning directly or indirectly all or substantially all of the consolidated assets of the Company (a “ Significant Subsidiary ”) with any other entity, other than a merger or consolidation which would result in the voting securities of the Company or a Significant Subsidiary outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving or resulting entity) more than 50% of the combined voting power of the surviving or resulting entity outstanding immediately after such merger or consolidation; or

(iv)

the stockholders of the Company approve a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the

stockholders of the Company in substantially the same proportions as their ownership of the common stock of the Company immediately prior to such sale or disposition) in which case the Board shall determine the effective date of the Change in Control resulting therefrom.

For purposes of this definition:

(A)

The term “ Beneficial Owner ” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act (including any successor to such Rule).

(B)

The term “ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto.

(C)

The term “ Person ” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including “group” as defined in Section 14(d) thereof.

(d) Voluntary Termination . In the event of a termination of employment by Executive on his own initiative after delivery of 90 business days advance written notice, other than a termination due to death, a termination with Good Reason, a Retirement pursuant to Section 8(f) below, or a voluntary termination by Executive on his own initiative pursuant to Section 8(e)(y), Executive shall have the same entitlements as provided in Section 8(b)(iii) above for a termination for Cause. Notwithstanding any implication to the contrary, Executive shall not have the right to terminate his employment with the Company during the Term of Employment except in the event of a termination with Good Reason, Retirement, or a voluntary termination by Executive on his own initiative pursuant to Section 8(e)(y), any voluntary termination of employment during the Term of Employment in violation of this Agreement shall be considered a material breach.

(e) Termination Without Cause and Termination With Good Reason Following a Change in Control. If either (x) Executive’s employment with the Company is terminated by the Company without Cause (which termination shall be effective as of the date specified by the Company in a written notice to Executive), other than due to death or Disability, or in the event there is a termination with Good Reason (as defined above), in either case within one year following a Change in Control (as defined above), or (y) Executive voluntarily terminates his employment on his own initiative on or after 275 days (but no later than 305 days) following a Change of Control, in either case of (x) or (y), Executive shall be entitled to and his sole remedies under this Agreement shall be:

(i)

Base Salary through the date of termination of Executive’s employment, which shall be paid in a single lump sum not later than 15 days following Executive’s termination of employment;

(ii)

an amount equal to 3 times the sum of (A) the Base Salary, at the annualized rate in effect on the date of termination of Executive’s employment (or in the event a reduction in Base Salary is a basis for a termination with Good Reason, then the Base Salary in effect immediately prior to such reduction), and (B) the greater of (x) the Target Bonus for the year of termination or (y) the actual prior year bonus, which amount shall be payable in lump sum within 15 days of termination of employment, unless otherwise required to be paid in accordance with Section 8(j),

(iii)

(iv)

(v)

other or additional benefits then due or earned in accordance with applicable plans and programs of the Company, and;

(vi)

all awards made to the Executive prior to the date of this Agreement shall vest and Executive shall be entitled to the benefit of all such awards immediately upon a Change of Control.

(f) Retirement. Upon Executive’s Retirement (as defined below), Executive shall be entitled to and his sole remedies under this Agreement shall be:

(i)

Base Salary through the date of termination of Executive’s employment, which shall be paid in a single lump sum not later than 15 days following Executive’s termination of employment;

(ii)

(iii)

the immediate vesting of all unvested equity awards held by Executive in existence as of the date of this Agreement; and

(iv)

all other or additional benefits then due or earned in accordance with applicable plans and programs of the Company.

For purposes of this Agreement, “ Retirement ” shall mean Executive’s voluntary retirement from employment with the Company as approved by the Board in its sole discretion.

(g) No Mitigation; No Offset. In the event of any termination of employment, Executive shall be under no obligation to seek other employment; amounts due Executive under this Agreement shall not be offset by any remuneration attributable to any subsequent employment that he may obtain.

(h) Nature of Payments. Any amounts due under this Section 8 are in the nature of severance payments considered to be reasonable by the Company and are not in the nature of a penalty.

(i) No Further Liability; Release. In the event of Executive’s termination of employment, payment made and performance by the Company in accordance with this Section 8 shall operate to fully discharge and release the Company and its directors, officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives from any further obligation or liability with respect to Executive’s rights under this Agreement. Other than payment and performance under this Section 8, the Company and its directors, officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives shall have no further obligation or liability to Executive or any other person under this Agreement in the event of Executive’s termination of employment. The Company conditions the payment of any severance or other amounts pursuant to this Section 8 upon the delivery by Executive to the Company of a release in the form satisfactory to the Company, substantially in the form attached hereto as Attachment 1 , releasing any and all claims Executive may have against the Company and its directors, officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives arising out of this Agreement.

(j) Section 409A Specified Employee. If the Executive is a “specified employee” for purposes of Section 409A of the Code, to the extent required to comply with Section 409A of the Code, any payments required to be made pursuant to this Section 8 which are deferred compensation and subject to Section 409A of the Code (and do not qualify for an

exemption thereunder) shall not commence until one day after the day which is six (6) months from the date of termination. Should this Section 8(j) result in a delay of payments to the Executive, on the first day any such payments may be made without incurring a penalty pursuant to Section 409A (the “ 409A Payment Date ”), the Company shall begin to make such payments as described in this Section 8, provided that any amounts that would have been payable earlier but for application of this Section 8(j) shall be paid in lump-sum on the 409A Payment Date.

(k) Termination Without Cause Within 90 Days Prior to A Change in Control . Anything in this Agreement to the contrary notwithstanding, if the Executive’s employment with the Company is terminated without Cause within 90 days prior to the date on which the Change in Control occurs, such termination shall be deemed to have occurred after a Change in Control for purposes of this Agreement.

(l) Financial Security For Payments Following a Change in Control. Following a Change in Control, at the request of Executive, the Company or its successor shall provide financial security reasonably acceptable to Executive for its obligations to make payments required by Section 8(e).

9. Forfeiture Provisions.

(a) Forfeiture of Stock Options and Other Awards and Gains Realized Upon Prior Option Exercises or Award Settlements and Severance Payments. Unless otherwise determined by the Committee, upon termination of Executive’s employment for Cause, the Executive’s engaging in competition with the Company or any Subsidiary after a voluntary termination of employment pursuant to Section 8(d), or Executive’s violation of any of the other restrictive covenants contained in Section 10, 11 or 12 (each a “ Forfeiture Event ”) while employed by the Company and for 24 months after such employment terminates, will result in:

(i)

The unexercised portion of any stock option, whether or not vested, and any other Award (as defined below) not then settled (except for an Award that has not been settled solely due to an elective deferral by Executive and otherwise is not forfeitable in the event of any termination of Executive’s service) will be immediately forfeited and canceled upon the occurrence of the Forfeiture Event;

(ii)

Executive will be obligated to repay to the Company, in cash, within five business days after demand is made therefor by the Company, the total amount of Award Gain (as defined herein) realized by Executive upon each exercise of a stock option or settlement of an Award (regardless of any elective deferral) that occurred (A) during the period commencing with the date that is 6 months prior to the occurrence of the Forfeiture Event and the date 24 months after the Forfeiture Date, if the Forfeiture Event occurred while Executive was employed by the Company or a Subsidiary or affiliate, or (B

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