Common use of Termination of Employment; Change in Control Clause in Contracts

Termination of Employment; Change in Control. (a) In the event that your employment with the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeited. (b) In the event of a Change in Control, your Stock Option shall become fully vested immediately prior thereto; provided, however, that the Compensation Committee of the Board (the “Committee”) may elect in its sole discretion prior to a Change in Control not to vest your Stock Option in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following the Change in Control you are the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement. (c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction. (d) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Option.

Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives. (a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to him as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which his employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates. (b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which his death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which his employment terminates due to vest your Stock Option in connection with such Change in Control if his death. Additionally, the Employer shall pay to the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which his death occurs and (ii) any bonus or other short-term incentive compensation for the year in which his death occurs that not accelerating he would have been eligible to receive if he had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which his death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned. (c) In the event of a transaction described in clause (vii) The Employer may terminate Executive’s employment under this Agreement upon its determination of the definition Disability of Good Reason in that certain Employment Agreement dated August 23the Executive, 2005 which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer’s long-term disability plan or insurance program. “Disability” shall mean as defined by and between Treasury Regulation § 1.409A-3(i)(4). During the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 period of any Disability leading up to the Companytermination of the Executive’s Form 8-K filed employment under this provision, the Employer shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Securities and Exchange Commission on August 25Employer’s normal payroll practices; provided that, 2005 (whether or not Yucaipa has a controlling interest within the meaning amount of any such clause), your Stock Option shall become fully vested immediately prior to such transaction. (d) Notwithstanding anything in this Award Agreement or the Employment Agreement payments to the contrary, in Executive shall be reduced by the event of any merger or consolidation sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).

Termination of Employment; Change in Control. (a) In the event that your employment with the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable until the third anniversary of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Effective Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Effective Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Effective Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Effective Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeited. (b) In the event of a Change in Control, your Stock Option shall become fully vested immediately prior thereto; provided, however, that the Compensation Committee of the Board (the “Committee”) may elect in its sole discretion prior to a Change in Control not to vest your Stock Option in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following the Change in Control you are the Co-President and Chief Financial Marketing and Merchandising Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement. (c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain the Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction. (d) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Option.

Termination of Employment; Change in Control. (a) In the event that your employment with the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option shall be considered fully vested and shall remain exercisable as set forth below: (i) if the Date of Termination occurs prior to the first anniversary of the Effective Date, your Stock Option shall be considered vested as to 1,000,000 shares of Common Stock and unvested as to 500,000 shares of Common Stock, the vested portion of your Stock Option shall remain exercisable until the third anniversary of the Date of Termination and the unvested portion of your Stock Option shall be forfeited; (ii) if the Date of Termination occurs on or after the first anniversary of the Effective Date and prior to the second anniversary of the Effective Date, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) as to 500,000 shares of Common Stock until the Expiration Date and as to 1,000,000 shares of Common Stock until the third anniversary of the Date of Termination. In ; (iii) if the event Date of Termination occurs on or after the second anniversary of the Effective Date and prior to the third anniversary of the Effective Date, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) as to 1,000,000 shares of Common Stock until the Expiration Date and as to 500,000 shares of Common Stock until the third anniversary of the Date of Termination; and (iv) if the Date of Termination occurs (A) on or after the third anniversary of the Grant Effective Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination prior to the Change in Control was requested by a party to, or was otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of TerminationExpiration Date. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Effective Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Effective Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of TerminationExpiration Date, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Effective Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of TerminationExpiration Date. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeited. (b) In the event of a Change in Control, your Stock Option shall become fully vested immediately prior thereto; provided, however, that the Compensation Committee of the Board (the “Committee”) may elect in its sole discretion prior to a Change in Control not to vest your Stock Option in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following the Change in Control you are the Co-President Chief Executive Officer and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) most senior officer of the surviving corporation in the Change in ControlControl (other than any non-executive chairman of the surviving corporation’s board of directors), which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement. (c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain the Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 to the Company’s Form 8-K filed with the Securities and Exchange Commission on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning of such clause), your Stock Option shall become fully vested immediately prior to such transaction. (d) Notwithstanding anything in this Award Agreement or the Employment Agreement to the contrary, in the event of any merger or consolidation of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock Option.

Termination of Employment; Change in Control. (a) In Notwithstanding the event that your termination of this Agreement or the termination of the Executive’s employment with for any reason, the Company is terminated by reason of your Involuntary Termination, except as otherwise expressly provided in this Section 5, your Stock Option parties shall be considered fully vested and required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination of this Agreement shall remain exercisable until affect any liability or other obligation of either party which shall have accrued prior to such termination, including, but not limited to, any liability, loss or damage on account of breach. No termination of employment shall terminate the third anniversary obligation of the Date Employer to make payments of Termination. In any vested benefits provided hereunder or the event the Date of Termination occurs (A) on or after the third anniversary obligations of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control Executive under Sections 7 and such Involuntary Termination prior to the Change in Control was requested by a party to, or was 8 of this Agreement. Unless otherwise in connection with, the Change in Control, your Stock Option shall be fully vested and shall remain exercisable (to the extent not previously exercised) until the third anniversary of the Date of Termination. In the event that you resign from your employment with the Company without Good Reason and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided stated in this Section 5, the vested portion effect of your Stock Option termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the Date of Termination shall remain exercisable until the third anniversary terms of the Date applicable benefit or incentive plan and/or the agreements governing such incentives. (a) The Executive’s employment hereunder may be terminated by the Executive upon 30 days written notice to the Employer or at any time by mutual agreement in writing. It shall not constitute a breach of Terminationthis Agreement for the Employer to suspend the Executive’s duties and to place the Executive on a paid leave during the 30-day notice period. If the Executive’s employment is terminated under this Section 5(a), and the unvested portion Employer shall pay the Executive only any sums due to him as Base Salary and/or reimbursement of your Stock Option expenses through the date of termination. Such amounts shall be forfeited. In paid at the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary end of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided payroll period that follows the payroll period in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your which his employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedterminates. (b) In This Agreement shall terminate upon death of the event of a Change in Control, your Stock Option shall become fully vested immediately prior theretoExecutive; provided, however, that in such event the Compensation Committee Employer shall pay to the estate of the Board (Executive the “Committee”) may elect compensation, including Base Salary and accrued but unused paid-time off in its sole discretion prior accordance with Employer’s policies with respect thereto, which otherwise would be payable to a Change the Executive through the date on which his death occurs. Such amounts shall be paid at the end of the payroll period that follows the payroll period in Control not which his employment terminates due to vest your Stock Option in connection with such Change in Control if his death. Additionally, the Employer shall pay to the Executive’s estate (i) it reasonably determines any bonus or other short-term incentive compensation earned, but not yet paid, for any year prior to the year in good faith which his death occurs and (ii) any bonus or other short-term incentive compensation for the year in which his death occurs that not accelerating he would have been eligible to receive if he had lived, multiplied by a fraction, the unvested portion numerator of your Stock Option which is necessary the number of days in the year that precede the date on which his death occurs and the denominator of which is three hundred sixty-five. Any bonus or advisable other short-term incentive compensation payable under this Section 5(b) shall be paid (i) on the date of payment to consummate other employees eligible for bonuses or other short-term incentive compensation under the Change in Controlsame plan or plans, or, (ii) immediately if no date or time frame for payment is specified in those plans, by March 15 of the calendar year following the Change calendar year in Control you are which the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to you) of the surviving corporation in the Change in Control, which surviving corporation compensation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting date, the portion of your Stock Option that is unvested after the date of the Change in Control shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreementearned. (c) In the event of a transaction described in clause (vii) The Employer may terminate Executive’s employment under this Agreement upon its determination of the definition Disability of Good Reason in that certain Employment Agreement dated August 23the Executive, 2005 which Disability has continued for such period required for the Executive to become eligible to receive long term disability benefits under the Employer’s long-term disability plan or insurance program. “Disability” shall mean as defined by and between Treasury Regulation § 1.409A-3(i)(4). During the Company and ▇▇▇▇ ▇▇▇▇▇▇▇▇, filed as Exhibit 10.2 period of any Disability leading up to the Companytermination of the Executive’s Form 8-K filed employment under this provision, the Employer shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any bonus) in accordance with the Securities and Exchange Commission on August 25Employer’s normal payroll practices provided that, 2005 (whether or not Yucaipa has a controlling interest within the meaning amount of any such clause), your Stock Option shall become fully vested immediately prior to such transaction. (d) Notwithstanding anything in this Award Agreement or the Employment Agreement payments to the contrary, in Executive shall be reduced by the event of any merger or consolidation sum of the Company amounts, if any, payable to the Executive for the same period under any other disability benefit covering the Executive that is provided by the Employer. Additionally, the Employer shall pay the Executive any bonus or other transaction following which either short-term incentive compensation earned, but not yet paid, through the Company is not the surviving corporation or the Common Stock ceases to be publicly tradeddate of termination, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment set forth in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionSection 5(b).

Termination of Employment; Change in Control. (a) In the event that your employment with the Company is terminated by reason of your Involuntary Termination, except Except as otherwise expressly provided set forth in this Section 5, your Stock Option shall be considered fully vested as otherwise approved by the Board or in an agreement between Grantee and shall remain exercisable until the third anniversary Company, if any, if Grantee’s status as an employee of the Date of Termination. In the event the Date of Termination occurs (A) on or after the third anniversary of the Grant Date, (B) on or after a Change in Control, or (C) within six months prior to a Change in Control and such Involuntary Termination Company ceases for any reason prior to the Change in Control was requested Vesting Date, then effective at the close of business on the date Grantee’s status as an employee ceases, all of Grantee’s Performance Shares covered by a party to, or was otherwise in connection with, the Change in Control, your Stock Option this Agreement shall be fully vested automatically cancelled and shall remain exercisable (to forfeited in their entirety without any further obligation on the extent not previously exercised) until the third anniversary part of the Date of Termination. In the event Company, such that you resign from your employment with the Company without Good Reason shall not be obligated to deliver any Shares or any other compensation to Grantee with respect to such cancelled and the Date of Termination is prior to the third anniversary of the Grant Date, the vested portion of your Stock Option shall remain exercisable until the end of the 90-day period following the Date of Termination and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated by reason of your death or Disability and the Date of Termination is prior to the third anniversary of the Grant Date, except as otherwise expressly provided in this Section 5, the vested portion of your Stock Option on the Date of Termination shall remain exercisable until the third anniversary of the Date of Termination, and the unvested portion of your Stock Option shall be forfeited. In the event that your employment with the Company is terminated for any reason other than your termination for Cause and the Date of Termination is on or following the third anniversary of the Grant Date, your Stock Option shall be fully vested and, except as otherwise expressly provided in this Section 5, shall remain exercisable until the third anniversary of the Date of Termination. Upon termination of your employment by the Company for Cause, the vested and unvested portion of your Stock Option shall be forfeitedforfeited Performance Shares. (b) In the event of a Change in Control, your Stock Option shall become fully vested immediately prior thereto; provided, however, that the Compensation Committee of Unless otherwise approved by the Board or pursuant to an agreement between Grantee and the Company, if any, if during the period commencing on the Grant Date and ending on the Vesting Date (the “CommitteeVesting Period”) may elect Grantee’s status as an employee of the Company terminates by reason of Grantee’s “permanent and total disability” (as defined in its sole discretion prior to a Change in Control not to vest your Stock Option in connection with such Change in Control if (i) it reasonably determines in good faith that not accelerating the unvested portion of your Stock Option is necessary or advisable to consummate the Change in Control, (ii) immediately following the Change in Control you are the Co-President and Chief Financial Officer (or if you are not the Chief Financial Officer, the Chief Financial Officer reports to youSection 22(e)(3) of the surviving corporation in Code) or death while an employee of the Change in Control, which surviving corporation is at least comparable in size to the Company immediately prior to the Change in Control and any related transactions, (iii) such surviving corporation has a publicly traded class of common stock and (iv) either (A) the Company is the surviving corporation in the Change in Control or (B) your Stock Option is assumed or replaced by such surviving corporation; provided further that if the Committee so elects not to vest the unvested portion of your Stock Option in connection with a Change in Control, subject to the other terms and conditions of this Award Agreement and your continued employment with the Company on the applicable vesting dateCompany, the portion of your Stock Option that is unvested after the date Award shall immediately vest at an award level based on 100% achievement of the Change in Control award targets. Any payments due to a deceased Grantee shall become fully vested on the six-month anniversary of the Change in Control or, if earlier, in accordance with the other, applicable vesting provisions of this Award Agreement. (c) In the event of a transaction described in clause (vii) of the definition of Good Reason in that certain Employment Agreement dated August 23, 2005 by and between the Company and ▇▇▇▇ be paid to ▇▇▇▇▇▇▇▇’s estate. (c) Unless otherwise approved by the Board or pursuant to an agreement between Grantee and the Company, filed as Exhibit 10.2 if any, if during the period commencing on the Grant Date and ending on the Vesting Date (the “Vesting Period”) in the event of a Change in Control prior to the Company’s Form 8-K filed with end of the Securities and Exchange Commission Performance Period, then the Performance Shares shall vest on August 25, 2005 (whether or not Yucaipa has a controlling interest within the meaning date of the consummation of such clauseChange in Control (the “Acquisition Date”), your Stock Option shall become fully vested immediately prior at an award level based on 100% achievement. Payment of any amount pursuant to such transactionthe preceding sentence may be made in cash and/or Shares in the Board’s discretion and will be made within thirty (30) days of the Change in Control. (d) Notwithstanding anything In the event a Change in this Award Agreement or Control occurs after the Employment Agreement end of the Performance Period but prior to the contraryVesting Date, the Performance Shares that have not been previously cancelled and forfeited shall become fully vested and payable, based on the Company’s actual achievement of the Performance Measures during the Performance Period. Payment of any amount pursuant to the preceding sentence may be made in cash and/or securities or Shares, in the event of any merger or consolidation Boards’s discretion, and will be made within thirty (30) days of the Company or other transaction following which either the Company is not the surviving corporation or the Common Stock ceases to be publicly traded, the Committee shall provide for: (i) the substitution by the surviving corporation or the Company’s parent corporation for your outstanding Stock Option of stock option(s) on the same terms as your Stock Option, and which preserve(s) the economic value to you of your outstanding Stock Option; or (ii) where all of the holders of the then outstanding Common Stock (other than Yucaipa) receive payment Change in cash or cash equivalents in consideration for such Common Stock, the cancellation of your Stock Option upon payment to you of a per share amount in cash or cash equivalents equal to (A) the highest price paid for a share of Common Stock in such transaction, minus (B) the exercise price of your Stock OptionControl.