Common use of By Reason of Constructive Termination Clause in Contracts

By Reason of Constructive Termination. Provided you have not previously been notified of the Company’s intention to terminate your employment, you may resign from employment by reason of Constructive Termination within thirty (30) days after the occurrence of one of the events specified in 9(b) (i-iv) below, by giving notice of your resignation in accordance with Paragraph 19 below. In the event of your death or disability as provided in 9(b) (v & vi) below your employment will terminate by reason of Constructive Termination as of the date of your death or as of the end of the 180 day period. In the event of such termination, in addition to Final Compensation, you shall be entitled to the following: (i) provided that no benefits are payable to you under a separate severance agreement as a result of such termination, an amount equal to twelve (12) months of your Base Salary at the rate in effect on the date of termination, less applicable withholdings and deductions, paid in a lump sum as provided below (the “Severance Payment”); (ii) if you are participating in the Company’s group health insurance plans on the effective date of termination, and you timely elect and remain eligible for continued coverage under COBRA, Xx. Xxxxxx X. Burke July 25, 2006 Page 4 of 9 or, if applicable, state insurance laws, the Company shall pay that portion of your COBRA premiums that the Company was paying prior to the effective date of termination for twelve (12) months following or for the continuation period for which Employee is eligible, whichever is shorter and in the event the continuation period is provided by state law and is less than twelve (12) months, pay to you the premium payments it would have made for the remainder of the twelve (12) month period (the “COBRA Premiums”); (iii) fifty percent (50%) of any unvested stock options or unvested restricted shares held by you shall vest in full upon the occurrence of the Constructive Termination, accelerated to one hundred percent (100%) vesting in the event Constructive Termination occurs within thirty (30) days prior to or One hundred eighty)180) days following a Corporate Transaction (as defined below); (iv) at your request, the post-termination exercise grace period set forth in your stock option agreements shall be extended to provide for an exercise period of up to 180 days following the Constructive Termination; provided, however, that such post-termination exercise grace period shall not be extended beyond the period of time that would enable the stock option to remain exempt under IRS Regulation 409A. Any obligation of the Company to you in Paragraph 9(b) is conditioned upon you signing and returning to the Company a timely and effective release of claims in the form provided by the Company (the “Release of Claims”). The Release of Claims required for separation benefits in accordance with this Section 9(b) creates legally binding obligations on your part and the Company and its Affiliates therefore advise you to seek the advice of an attorney before signing it. The Severance Payments shall be payable and due as a lump sum and COBRA Premiums will commence thirty (30) days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by you, is received by the Company. The following shall constitute Constructive Termination: (i) failure of the Company to provide you Base Salary and benefits in accordance with the terms of this Agreement, excluding an inadvertent failure which is cured within ten (10) business days following written notice from you to the Company specifying in detail the nature of such failure; (ii) failure of the Company, or a successor to the Company, to provide you with a position that is equivalent in title, total compensation (salary and bonus), benefits or responsibilities to your then current position within ninety (90) days of a Corporate Transaction resulting in a material diminution of your responsibilities, duties or authority. Diminution of your responsibilities shall NOT, however, include having the same general responsibilities in a division/business unit/subsidiary of any entity Xx. Xxxxxx X. Burke July 25, 2006 Page 5 of 9 surviving the Corporate Transaction. (iii) material diminution in the nature or scope of your responsibilities, duties or authority; (iv) relocation of your employment by more than fifty (50) miles outside of the Boston, Massachusetts area; (v) failure of the Company to materially comply with the terms of this Agreement; (vi) termination of your employment as a result of your death; or (vii) termination of your employment as a result of the fact that you become disabled during your employment with an illness, injury, accident or condition of either a physical or psychological nature, and, as a result, you are unable to perform substantially all of your duties and responsibilities hereunder, with or without a reasonable accommodation, for 180 consecutive days in any 365 consecutive calendar days.

By Reason of Constructive Termination. Provided you have not previously been notified of the Company’s intention to terminate your employment, you may resign from employment by reason of Constructive Termination within thirty (30) days after the occurrence of one of the events specified in 9(b) (i-ivv) below, by giving notice of your resignation in accordance with Paragraph 19 below. In the event of your death or disability as provided in 9(b) (v vi & vivii) below your employment will terminate by reason of Constructive Termination as of the date of your death or as of the end of the 180 day period. In the event of such termination, in addition to Final Compensation, you shall be entitled to the following: (i) provided that no benefits are payable to you under a separate severance agreement as a result of such termination, an amount equal to twelve (12) months of your Base Salary at the rate in effect on the date of termination, less applicable withholdings and deductions, paid in a lump sum as provided below (the “Severance Payment”); (ii) if you are participating in the Company’s group health insurance plans on the effective date of termination, and you timely elect and remain eligible for continued coverage under COBRA, Xx. Xxxxxx X. Burke July 25, 2006 Page 4 of 9 or, if applicable, state insurance laws, the Company shall pay that portion of your COBRA premiums that the Company was paying prior to the effective date of termination for twelve (12) months following or for the continuation period for which Employee is eligible, whichever is shorter and in the event the continuation period is provided by state law and is less than twelve (12) months, pay to you the premium payments it would have made for the remainder of the twelve (12) month period (the “COBRA Premiums”); (iii) fifty percent (50%) of any unvested stock options or unvested restricted shares held by you shall vest in full upon the occurrence of the Constructive Termination, accelerated to one hundred percent (100%) vesting in the event Constructive Termination occurs within thirty (30) days prior to or One one hundred eighty)180) eighty days following a Corporate Transaction (as defined below); (iv) at your request, the post-termination exercise grace period set forth in your stock option agreements shall be extended to provide for an exercise period of up to 180 days following the Constructive Termination; provided, however, that such post-termination exercise grace period shall not be extended beyond the period of time that would enable the stock option to remain exempt under IRS Regulation 409A. Any obligation of the Company to you in Paragraph 9(b) is conditioned upon you signing and returning to the Company a timely and effective release of claims in the form provided by the Company (the “Release of Claims”). The Release of Claims required for separation benefits in accordance with this Section 9(b) creates legally binding obligations on your part and the Company and its Affiliates therefore advise you to seek the advice of an attorney before signing it. The Severance Payments shall be payable and due as a lump sum and COBRA Premiums will commence thirty (30) days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by you, is received by the Company. The following , and the COBRA Premiums shall constitute Constructive Termination: (i) failure of commence upon the Company to provide you Base Salary and benefits in accordance with the terms of this Agreement, excluding an inadvertent failure which is cured within ten (10) business days following written notice from you to the Company specifying in detail the nature of such failure; (ii) failure of the Company, or a successor to the Company, to provide you with a position that is equivalent in title, total compensation (salary and bonus), benefits or responsibilities to your then current position within ninety (90) days of a Corporate Transaction resulting in a material diminution effective date of your responsibilities, duties or authority. Diminution termination of your responsibilities shall NOTemployment; provided, however, include having that the same general responsibilities in Company has the right to terminate the payment of COBRA Premiums if a division/business unit/subsidiary Release of any entity Xx. Xxxxxx X. Burke July 25, 2006 Page 5 of 9 surviving Claims has not been delivered by you within thirty (30) days following the Corporate Transaction. (iii) material diminution in the nature or scope effective date of your responsibilities, duties or authority; (iv) relocation of your employment by more than fifty (50) miles outside of the Boston, Massachusetts area; (v) failure of the Company to materially comply with the terms of this Agreement; (vi) termination of your employment as a result of your death; or (vii) termination of your employment as a result of the fact that you become disabled during your employment with an illness, injury, accident or condition of either a physical or psychological nature, and, as a result, you are unable to perform substantially all of your duties and responsibilities hereunder, with or without a reasonable accommodation, for 180 consecutive days in any 365 consecutive calendar days.of

By Reason of Constructive Termination. Provided you have not previously been notified of the Company’s intention to terminate your employment, you may resign from employment by Xx. Xxxxxx X. Burke reason of Constructive Termination within thirty (30) days after the occurrence of one of the events specified in 9(b) (i-ivv) below, by giving notice of your resignation in accordance with Paragraph 19 Section 18 below. In the event of your death or disability as provided in 9(bSection 8(b)(vi) (v & vior 8(b)(vii) below your employment will terminate by reason of Constructive Termination as of the date of your death or as of the end of the 180 one hundred eighty (180) day period, in the case of disability. In the event of such termination, in addition to Final Compensation, you shall be entitled to the following: (i) provided that no benefits are payable to you under a separate severance agreement as a result of such termination, an amount equal to twelve (12) months of your Base Salary, at the rate in effect on the date of termination, plus your annual Bonus in respect of any Calendar year that has been earned but not yet paid (for this purpose the Bonus earned for such calendar year shall be determined by the Board in good faith and in the same manner applicable to executive officers of the Company, your “Earned and Unpaid Bonus”) or, in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or three hundred sixty-five (365) days following a Corporate Transaction, twelve (12) months of your Base Salary at the rate in effect on the date of terminationtermination plus, only following a Corporation Transaction, an amount equal to your Pro-Rata Bonus plus any Earned and Unpaid Bonus, less applicable withholdings and deductions, paid in a lump sum as provided below (the “Severance Payment”); (ii) if you are participating in the Company’s group health insurance plans on the effective date of termination, and you timely elect and remain eligible for continued coverage under COBRA, Xx. Xxxxxx X. Burke July 25, 2006 Page 4 of 9 or, if applicable, state insurance laws, the Company shall pay that portion of your COBRA premiums equal to the amount that the Company was paying for you under such group health insurance plans prior to the effective date of termination for twelve (12) months following or for the continuation period for which Employee is eligible, whichever is shorter longer and in the event the continuation period is provided by state law and is less than twelve (12) months, pay to you the premium payments it would have made for the remainder of the twelve (12) month month-period (the “COBRA Premiums”); (iii) fifty percent (50%) of any unvested stock options or unvested restricted shares held by you shall vest in full upon the occurrence of the Constructive TerminationTermination or a termination without Cause, accelerated to one hundred percent (100%) vesting in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or One three hundred eighty)180sixty-five (365) days following a Corporate Transaction (as defined below) (the “Option Acceleration”); and (iv) at your request, the post-termination exercise grace period set forth in your stock option agreements shall be extended to provide for an exercise period of up to 180 one hundred eighty (180) days following the Constructive Terminationtermination (the “Option Extension”); provided, however, that such post-termination exercise grace the Option Extension period shall not be extended beyond the period of time that would enable the stock option to remain exempt under IRS Regulation 409A. Section 409A (as defined below). Any obligation of the Company to you in Paragraph 9(bSection 8(b) is conditioned upon you signing and returning to the Company a timely and effective release of claims claims, in the form provided by the Company attached hereto as Exhibit A (the “Release of Claims”). The Release of Claims required for separation benefits in accordance with this Section 9(b8(b) creates legally binding obligations on your part and the Company and its Affiliates therefore advise you to seek the advice of an attorney before signing it. The Severance Payments shall be payable and due as a lump sum sum, and COBRA Premiums will commence be paid thirty (30) days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by you, is received by the Company, subject to Section 11(d) hereof. The payment of the COBRA Premiums will commence on such later date as well. Notwithstanding the foregoing, if the Company determines that it cannot provide such reimbursement of premiums to you without potentially violating applicable law, the Company shall not be obligated to make any such payments or reimbursements to you. The following shall constitute Constructive Termination:: Xx. Xxxxxx X. Burke (i) failure of the Company to provide you Base Salary (as may have been increased pursuant to Section 3) and benefits in accordance with the terms of this Agreement, excluding an inadvertent failure which is cured within ten (10) business days following written notice from you to the Company specifying in detail the nature of such failure; (ii) failure of the Company, or a successor to the Company, to provide you with a position that is equivalent in title, total compensation (salary and bonus), benefits or responsibilities to your then current position within ninety (90) days of a Corporate Transaction resulting in a material diminution of your responsibilities, duties or authority. Diminution of your responsibilities shall NOT, however, include having the same general responsibilities in a division/business unit/subsidiary of any entity Xx. Xxxxxx X. Burke July 25, 2006 Page 5 of 9 surviving the Corporate Transaction.; (iii) material diminution in the nature or scope of your responsibilities, duties or authority, or a reduction in your Base Salary (as may have been increased pursuant to Section 3) without your prior written consent; (iv) relocation of your employment by more than fifty (50) miles outside of the Boston, Massachusetts area; (v) failure of the Company to materially comply with the terms of this Agreement; (vi) termination of your employment as a result of your death; or (vii) termination of your employment as a result of the fact that you become disabled during your employment with an illness, injury, accident or condition of either a physical or psychological nature, and, as a result, you are unable to perform substantially all of your duties and responsibilities hereunder, with or without a reasonable accommodation, for 180 one hundred eighty (180) consecutive days in any 365 three hundred sixty-five (365) consecutive calendar days.

By Reason of Constructive Termination. Provided you have not previously been notified of the Company’s intention to terminate your employment, you may resign from employment by reason of Constructive Termination within thirty (30) days after the occurrence of one of the events specified in 9(b) (i9(b)(i-ivv) below, by giving notice of your resignation in accordance with Paragraph 19 Section 18 below. In the event of your death or disability as provided in 9(bSection 8(b)(vi) (v & vior 8(b)(vii) below your employment will terminate by reason of Constructive Termination as of the date of your death or as of the end of the 180 day one hundred eighty (180)-day period, in the case of disability. In the event of such termination, in addition to Final Compensation, you shall be entitled to the following: (i) provided that no benefits are payable to you under a separate severance agreement as a result of such termination, an amount equal to twelve (12) months of your Base Salary Salary, at the rate in effect on the date of termination, plus your annual Bonus in respect of any calendar year that has been earned but not yet paid (for this purpose, the Bonus earned for such calendar year shall be determined by the Board in good faith and in the same manner applicable to active executive officers of the Company, your “Earned Unpaid Bonus”) or, in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or three hundred sixty-five (365) days following a Corporate Transaction, eighteen (18) months of your Base Salary, as applicable, at the rate in effect on the date of termination plus, only following a Corporation Transaction, an amount equal to your Pro-Rata Bonus plus any Earned and Unpaid Bonus, less applicable withholdings and deductions, paid in a lump sum as provided below (the “Severance Payment”); (ii) if you are participating in the Company’s group health insurance plans on the effective date of termination, and you timely elect and remain eligible for continued coverage under COBRA, Xx. Xxxxxx X. Burke July 25, 2006 Page 4 of 9 or, if applicable, state insurance laws, the Company shall pay that portion of your COBRA premiums equal to the amount that the Company was paying for you under such group health insurance plans prior to the effective date of termination for twelve (12) months following (the “12-Month Tail Period”) or, in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or three hundred sixty-five (365) days following a Corporate Transaction, eighteen (18) months following (the “18-Month Tail Period” and, collectively with the 12-Month Tail Period, the “Tail Period”), as applicable, or for the continuation period for which Employee is eligible, whichever is shorter longer and in the event the continuation period is provided by state law and is less than twelve (12) monthsthe applicable Tail Period, pay to you the premium payments it would have made for the remainder of the twelve (12) month period applicable Tail Period (the “COBRA Premiums”); (iii) fifty percent (50%) of any unvested stock options or unvested restricted shares held by you shall vest in full upon the occurrence of the Constructive TerminationTermination or a termination without Cause, accelerated to one hundred percent (100%) vesting in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or One three hundred eighty)180sixty-five (365) days following a Corporate Transaction (as defined below) (the “Option Acceleration”); and (iv) at your request, the post-termination exercise grace period set forth in your stock option agreements shall be extended to provide for an exercise period of up to 180 one hundred eighty (180) days following the Constructive Terminationtermination (the “Option Extension”); provided, however, that such post-termination exercise grace the Option Extension period shall not be extended beyond the period of time that would enable the stock option to remain exempt under IRS Regulation 409A. Section 409A (as defined below). Any obligation of the Company to you in Paragraph 9(b) is conditioned upon you signing and returning to the Company a timely and effective release of claims claims, in the form provided by the Company attached hereto as Exhibit A (the “Release of Claims”). The Release of Claims required for separation benefits in accordance with this Section 9(b8(b) creates legally binding obligations on your part and the Company and its Affiliates therefore advise you to seek the advice of an attorney before signing it. The Severance Payments shall be payable and due as a lump sum and COBRA Premiums will commence thirty (30) days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by you, is received by the Company. The following shall constitute Constructive Termination: (i) failure of the Company to provide you Base Salary and benefits in accordance with the terms of this Agreement, excluding an inadvertent failure which is cured within ten (10) business days following written notice from you to the Company specifying in detail the nature of such failure; (ii) failure of the Company, or a successor to the Company, to provide you with a position that is equivalent in title, total compensation (salary and bonus), benefits or responsibilities to your then current position within ninety (90) days of a Corporate Transaction resulting in a material diminution of your responsibilities, duties or authority. Diminution of your responsibilities shall NOT, however, include having the same general responsibilities in a division/business unit/subsidiary of any entity Xx. Xxxxxx X. Burke July 25, 2006 Page 5 of 9 surviving the Corporate Transaction. (iii) material diminution in the nature or scope of your responsibilities, duties or authority; (iv) relocation of your employment by more than fifty (50) miles outside of the Boston, Massachusetts area; (v) failure of the Company to materially comply with the terms of this Agreement; (vi) termination of your employment as a result of your death; or (vii) termination of your employment as a result of the fact that you become disabled during your employment with an illness, injury, accident or condition of either a physical or psychological nature, and, as a result, you are unable to perform substantially all of your duties and responsibilities hereunder, with or without a reasonable accommodation, for 180 consecutive days in any 365 consecutive calendar days.Affiliates