Common use of Additional Benefits Upon Termination Clause in Contracts

Additional Benefits Upon Termination. Upon a termination of the Employee’s employment in accordance with Section 9(d) hereof, the Employee shall be entitled to the following additional benefits: (a) To the extent permitted by law and the group insurance plans maintained for the Company’s employees, and conditioned upon the continued satisfaction of all eligibility requirements for such coverage and that the Employee makes a timely election of continuation of coverage under COBRA, the Employee and those of the Employee’s dependents (including the Employee’s spouse) who were covered under the Benefit Plans at the time of termination of the Employee’s employment shall continue to be covered under all such plans throughout the two-year period beginning on the date of such termination (the “Health Insurance Coverage Period”), at a cost to the Employee that is no greater than the cost of such coverage paid by the Employee immediately prior to such termination; provided, however, that coverage under a particular Benefit Plan shall immediately end upon the Employee’s obtaining new employment and coverage under a similar benefit plan maintained by the Employee’s new employer (with the Employee being obligated hereunder to promptly report such new coverage to the Company); and provided, further, that (x) if such continued coverage will have adverse tax consequences to the Employee as compared to the tax consequences associated with similar coverage provided to an active executive employee of the Company, then the Company shall provide identical coverage through individual policies that do not have such adverse tax consequences or otherwise pay to the Employee a cash gross-up payment to make the Employee whole (on an after-tax basis) for such adverse tax consequences, and (y) if such continued coverage will have adverse consequences to the Company or the Benefit Plans (or any Affiliate or successor) or is otherwise not permissible under law or the terms of the applicable plans, then the Company shall provide identical coverage through individual policies or otherwise pay to the Employee a cash payment sufficient to allow the Employee (on an after-tax basis) to procure such individual policies. Upon making the election of continuation of coverage under COBRA, the Employee’s COBRA coverage period shall run concurrently with the Health Insurance Coverage Period. With respect to Benefit Plans other than health, disability, and life insurance programs, including, without limitation, 401(k), stock purchase or stock option agreements, and non-qualified salary continuation agreements, the Employee’s rights under such benefit programs upon and following the termination of the Employee’s employment shall be governed by the terms of the applicable benefit program and/or agreements. (b) If the Employee receives any payment, deemed payment, or other benefit under or pursuant to Section 9 or 10(a) hereof (a “Payment”) that would constitute an “excess parachute payment” under section 280G of the Code in relation to or on account of the Merger (but not in relation to or on account of any subsequent Change in Control transaction or transactions), and would be subject to the excise tax imposed by section 4999 of the Code or any interest or penalties (other than interest or penalties that are the result of errors or omissions that are the primary responsibility of the Employee) with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then, notwithstanding anything herein to the contrary, the Company shall promptly pay to the Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes other than interest or penalties that are the result of errors or omissions that are the primary responsibility of the Employee), including any Excise Tax imposed on any Gross-up Payment, the Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Employee shall notify the Company in writing (within five days of the receipt of any claim; provided that failure to timely notify the Company shall not affect the Employee’s right to receive a Gross-up Payment unless the delay results in a significant detriment to the Company) of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and the Employee). The Company shall notify the Employee in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, the Employee shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Employee receives a refund of any amount paid by the Company with respect to such claim, the Employee shall promptly pay such refund to the Company. If the Company fails to timely notify Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Employee the portion of such claim, if any, which it has not previously paid to the Employee. (c) If the Employee would receive any payment, deemed payment, or other benefit as a result of the operation of this Agreement that, together with any other payment, deemed payment or other benefit the Employee may receive under any other plan, program, policy or arrangement, would constitute an “excess parachute payment” under section 280G of the Code in relation to or on account of any Change in Control transaction or transactions subsequent to or other than the Merger, then, notwithstanding anything herein to the contrary, the payments, deemed payments or other benefits the Employee would otherwise receive under this Agreement shall be reduced to the extent necessary to eliminate any such excess parachute payment and the Employee shall have no further rights or claims with respect thereto. If the preceding sentence would result in a reduction of the payments, deemed payments, or other benefits the Employee would otherwise receive if legally permitted to do so, the Company will use its best efforts to seek the approval of the Company’s stockholders in the manner provided for in section 280G(b)(5) of the Code and the regulations thereunder with respect to such reduced payments or other benefits, so that such payments would not be treated as “parachute payments” for these purposes (and therefore would cease to be subject to reduction pursuant to this Section 10(c). (d) The Employee shall be entitled to receive out-placement services in connection with obtaining new employment up to a maximum cost of $25,000 (which shall be paid by the Company (or an Affiliate) directly to the provider of such services). (e) If any amount owing by the Company (or an Affiliate) to the Employee under Section 9(c), (d), or (e) hereof is not paid when due, the Company shall pay to the Employee interest on the amount payable from the date that such payment should have been made until such payment is made, at the rate of 12% per annum.

Additional Benefits Upon Termination. Upon a termination of the Employee’s employment in accordance with Section 9(d) hereof, the Employee shall be entitled to the following additional benefits: (a) To the extent permitted by law and the group insurance plans maintained for the Company’s employees, and conditioned upon the continued satisfaction of all eligibility requirements for such coverage and that the Employee makes a timely election of continuation of coverage under COBRA, the Employee and those of the Employee’s dependents (including the Employee’s spouse) who were covered under the Benefit Plans at the time of termination of the Employee’s employment shall continue to be covered under all such plans throughout the twothree-year period beginning on the date of such termination (the “Health Insurance Coverage Period”), at a cost to the Employee that is no greater than the cost of such coverage paid by the Employee immediately prior to such termination; provided, however, that coverage under a particular Benefit Plan shall immediately end upon the Employee’s obtaining new employment and coverage under a similar benefit plan maintained by the Employee’s new employer (with the Employee being obligated hereunder to promptly report such new coverage to the Company); and provided, further, that (x) if such continued coverage will have adverse tax consequences to the Employee as compared to the tax consequences associated with similar coverage provided to an active executive employee of the Company, then the Company shall provide identical coverage through individual policies that do not have such adverse tax consequences or otherwise pay to the Employee a cash gross-up payment to make the Employee whole (on an after-tax basis) for such adverse tax consequences, and (y) if such continued coverage will have adverse consequences to the Company or the Benefit Plans (or any Affiliate or successor) or is otherwise not permissible under law or the terms of the applicable plans, then the Company shall provide identical coverage through individual policies or otherwise pay to the Employee a cash payment sufficient to allow the Employee (on an after-tax basis) to procure such individual policies. Upon making the election of continuation of coverage under COBRA, the Employee’s COBRA coverage period shall run concurrently with the Health Insurance Coverage Period. With respect to Benefit Plans other than health, disability, and life insurance programs, including, without limitation, 401(k), stock purchase or stock option agreements, and non-qualified salary continuation agreements, the Employee’s rights under such benefit programs upon and following the termination of the Employee’s employment shall be governed by the terms of the applicable benefit program and/or agreements. (b) If the Employee receives any payment, deemed payment, or other benefit under or pursuant to Section 9 or 10(a) hereof (a “Payment”) that would constitute an “excess parachute payment” under section 280G of the Code in relation to or on account of the Merger (but not in relation to or on account of any subsequent Change in Control transaction or transactions), and would be subject to the excise tax imposed by section 4999 of the Code or any interest or penalties (other than interest or penalties that are the result of errors or omissions that are the primary responsibility of the Employee) with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then, notwithstanding anything herein to the contrary, the Company shall promptly pay to the Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes other than interest or penalties that are the result of errors or omissions that are the primary responsibility of the Employee), including any Excise Tax imposed on any Gross-up Payment, the Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Employee shall notify the Company in writing (within five days of the receipt of any claim; provided that failure to timely notify the Company shall not affect the Employee’s right to receive a Gross-up Payment unless the delay results in a significant detriment to the Company) of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and the Employee). The Company shall notify the Employee in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, the Employee shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Employee receives a refund of any amount paid by the Company with respect to such claim, the Employee shall promptly pay such refund to the Company. If the Company fails to timely notify Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Employee the portion of such claim, if any, which it has not previously paid to the Employee. (c) If the Employee would receive any payment, deemed payment, or other benefit as a result of the operation of this Agreement that, together with any other payment, deemed payment or other benefit the Employee may receive under any other plan, program, policy or arrangement, would constitute an “excess parachute payment” under section 280G of the Code in relation to or on account of any Change in Control transaction or transactions subsequent to or other than the Merger, then, notwithstanding anything herein to the contrary, the payments, deemed payments or other benefits the Employee would otherwise receive under this Agreement shall be reduced to the extent necessary to eliminate any such excess parachute payment and the Employee shall have no further rights or claims with respect thereto. If the preceding sentence would result in a reduction of the payments, deemed payments, or other benefits the Employee would otherwise receive if legally permitted to do so, the Company will use its best efforts to seek the approval of the Company’s stockholders in the manner provided for in section 280G(b)(5) of the Code and the regulations thereunder with respect to such reduced payments or other benefits, so that such payments would not be treated as “parachute payments” for these purposes (and therefore would cease to be subject to reduction pursuant to this Section 10(c). (d) The Employee shall be entitled to receive out-placement services in connection with obtaining new employment up to a maximum cost of $25,000 (which shall be paid by the Company (or an Affiliate) directly to the provider of such services). (e) If any amount owing by the Company (or an Affiliate) to the Employee under Section 9(c), (d), or (e) hereof is not paid when due, the Company shall pay to the Employee interest on the amount payable from the date that such payment should have been made until such payment is made, at the rate of 12% per annum.