Common use of Certain Severance Payments Clause in Contracts

Certain Severance Payments. If during the Term the Company terminates the Term pursuant to Section 4(d) hereof or the Executive terminates the Term pursuant to Section 4(e) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be (the “Termination Date”), and, subject to the final sentence of this Section 5(a), the Company shall pay to the Executive, subject to Sections 5(c), 6 and 7(e) hereof, the following sums: (i) an amount equal to the sum of (a) the Base Salary, as in effect on the Termination Date, payable over the twelve (12) month period following the Termination Date (the “Severance Period”) and (b) an amount equal to the Target Bonus, payable in a lump-sum within five (5) Business Days following the Termination Date; (ii) benefits under group health insurance plans in which the Executive participated prior to termination through the earlier of (x) the end of the Severance Period and (y) the date upon which the Executive commences employment with any other Person; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plans, and any other such benefits under disability, and life insurance plans, policies, and programs applicable to the Company which benefits, if any, shall be payable as provided therein. If, prior to the end of the Severance Period, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation.

Certain Severance Payments. If during the Term the Company terminates the Term this Agreement is -------------------------- terminated pursuant to Section 4(d4(c) hereof (i) or the Executive terminates the Term pursuant to Section 4(e(ii) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s 's or Executive’s 's notice, as the case may be (the “"Termination Date”"), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c), Section ---------------- 6 and 7(e) hereof, the following sumssums and benefits: (i) an amount equal to the sum of (a) the Base Salary, as in effect Salary on the Termination DateDate for one year (the "Severance Period"), payable ratably over the twelve ---------------- Severance Period in accordance with the Company's standard payroll policy; (12ii) month period following any unpaid bonus earned under Section 3(e) with respect to all prior years in one lump sum; (iii) the Termination Date unpaid bonus under Section 3(e) for that portion of the year in which termination occurs, which bonus calculated under this clause (iii) shall be no less than the “Severance Period”) and prorata portion (b) an amount equal based upon the portion of the year during which employment continued as compared to the Target Bonusentire year) of the greater of the bonus earned by Executive in the immediately prior year or the target bonus payable under Section 3(e) for such year calculated on the basis that Executive had achieved the mutually agreed upon objectives for such year, payable in a lump-sum within five (5) Business Days following the Termination Dateone lump sum; (iiiv) benefits under group health and life insurance plans in which the Executive participated prior to termination through the earlier of (x) the end of the Severance Period and (y) the date upon which the Executive commences employment with any other Person; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus)Period; (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including including, without limitation, any such benefits which have become vested prior to the Termination Date under the retirement plansCompany's pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable to the Company which programs; (vi) expenses reimbursable under Section 3(c); (vii) all previously earned, accrued, and unpaid compensation and benefits, if any, shall be payable as provided thereinunder Section 3(i); and (viii) if Executive is residing in a rental residence pursuant to Section 3(h), a continuation of the Company's payment responsibilities thereto pursuant to Section 3(h) for a period no less than 3 months. If, prior to the end of the Severance Period, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (iiiii) of this Section 5(a) on or after the date of such violation. Amounts payable under this Section 5(a) shall be payable within 10 days of the Termination Date, with the exception of the amounts payable ratably under Section 5(a)(i).

Certain Severance Payments. If during the Term the Company terminates the Term this Employment Agreement pursuant to Section 4(d) 5.4 hereof (Termination without Cause), or the Executive terminates the Term this Employment pursuant to Section 4(e) hereof5.5 hereof (Termination By Executive for Good Reason), all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be 's notice (the “Termination Date”), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c), Section 6 and 7(e) hereof, the following sums: (i) an amount equal to the sum of (a) the Base Salary, as in effect Salary on the Termination Date, payable over the twelve (12) month period following the Termination Date (the “Severance Period”) and (b) an amount equal to the Target Bonusfor six months, payable in a lump-sum within five (5) Business Days following the Termination Datemonthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the earlier of (x) the end of the Severance Period and (y) the date upon which the Executive commences employment with any other Personfor twelve months; (iii) all accrued unpaid expenses described in Section 3.4 and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plansCompany's pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable to the Company which benefitsprograms, if any, shall be payable as provided therein. If, prior to the end date on which the Company's obligations under clause (i) of the Severance Periodthis Section 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. Notwithstanding the foregoing, payments of the amounts described in clauses (i) and (ii) of this Section 5.1 shall be conditioned on the delivery by the executive of a release of any and all claims that the Executive may have against the Company through the date of termination, which release shall be in form and substance satisfactory to the Company. In addition, if during the Term the Company terminates this Employment Agreement pursuant to Section 5.4 hereof, or the Executive terminates this Employment pursuant to Section 5.5 hereof, all Warrants and Options issued to the Executive shall vest in full and become immediately convertible or exercisable in accordance with their respective terms.

Certain Severance Payments. If during the Term the Company terminates the Term this Employment Agreement is terminated pursuant to Section Sections 4(d) hereof or the Executive terminates the Term pursuant to Section 4(e) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be notice (the “Termination Date”), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c)Section 6 hereof, 6 and 7(e) hereofin addition to any amounts owed to the Executive pursuant to this Agreement for services rendered by the Executive to the Company prior to such Termination Date, the following sums: (i) an amount equal to the sum of (a) the Base Salary, as in effect Salary on the Termination Date, payable over Date for the twelve greater of remainder of the Term or six (126) month months (the applicable period following the Termination Date (being referred to as the “Severance Period”) and (b) an amount equal to the Target Bonus), payable in a lump-sum within five (5) Business Days following the Termination Datemonthly installments over such time period; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the earlier of (x) the end of the Severance Period and (y) the date upon which the Executive commences employment with any other PersonPeriod; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plansCompany’s pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable programs; and (iv) so long as the Company has achieved its budgeted EBITDA level for the period commencing with the end of the Company’s immediately previous fiscal year through the Termination Date, an amount equal to the Company which benefitsproduct of the bonus paid to the Executive in respect of the immediately preceding fiscal year pursuant to Section 3(b), if anytimes the quotient obtained by dividing (x) the number of full calendar months occurring since the end of the immediately previous fiscal year through the Termination Date, shall be payable as provided thereinby (y) 12. If, prior to the end date on which the Company’s obligations under clause (i) of the Severance Periodthis Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates the Term this Employment Agreement is terminated pursuant to Section Sections 4(d) hereof (but only for termination of Executive by Company) or the Executive terminates the Term pursuant to Section 4(e) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be notice (the “Termination Date”), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c)Section 6 hereof, 6 and 7(e) hereofin addition to any amounts owed to the Executive pursuant to this Agreement for services rendered by the Executive to the Company prior to such Termination Date, the following sums: (i) an amount equal to the sum of (a) the Base Salary, as in effect Salary on the Termination Date, payable over Date for six (6) months (the twelve (12) month applicable period following the Termination Date (being referred to as the “Severance Period”) and (b) an amount equal to the Target Bonus), payable in a lump-sum within five (5) Business Days following the Termination Datemonthly installments over such time period; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the earlier of (x) the end of the Severance Period and (y) the date upon which the Executive commences employment with any other PersonPeriod; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plansCompany’s pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable programs; and (iv) so long as the Company has achieved its budgeted EBITDA level for the period commencing with the end of the Company’s immediately previous fiscal year through the Termination Date, an amount equal to the Company which benefitsproduct of the bonus paid to the Executive in respect of the immediately preceding fiscal year pursuant to Section 3(b), if anytimes the quotient obtained by dividing (x) the number of full calendar months occurring since the end of the immediately previous fiscal year through the Termination Date, shall be payable as provided thereinby (y) 12. If, prior to the end date on which the Company’s obligations under clause (i) of the Severance Periodthis Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates the Term this Agreement is terminated pursuant to any of Section 4(d) hereof 4.1, 4.2, 4.4 or the Executive terminates the Term pursuant to Section 4(e) hereof4.5,, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be notice of termination (the “"Termination Date”"), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c), Section 6 and 7(e) hereof, the following sums: (i) an amount equal to the sum of (a) the Base Salary, as in effect Salary on the Termination Date, payable over the Date for twelve (12) month period following the Termination Date months (the “Severance Period”) and (b) an amount equal to the Target Bonus), payable in a lump-sum within five (5) Business Days following the Termination Datemonthly installments; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive participated prior may continue to termination participate in as a non-employee through the earlier of (x) the end of the Severance Period Period; and (y) the date upon which the Executive commences employment with any other Person; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plansCompany's pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable to programs. Notwithstanding the Company which benefitsforegoing, if anythe Executive is terminated pursuant to Section 4.4 hereof within six months of a Change of Control (as defined in Section 8.7 hereof), then, subject to Section 6 hereof, the Severance Period shall be payable as provided thereinfor six months instead of three months. If, prior to the end date on which the Company's obligations under clause (i) of the Severance Periodthis Section 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (iiiii) of this Section 5(a) 5.1 on or after the date of such violation. Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be postponed to the earliest business day on which the Company reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the first business day after the six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a benefit can likely be avoided by replacing the benefit with the payment of an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and the Executive may agree to take other actions to avoid the imposition of 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the prime or base lending rate then used by Citibank, N. A., in New York City and in effect as of the date the payment would otherwise have been provided.

Certain Severance Payments. If during the Term the Company terminates the Term this Employment Agreement pursuant to Section 4(d) hereof or the Executive terminates the Term pursuant to Section 4(e) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be notice (the “Termination Date”), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c), Section 6 and 7(e) hereof, the following sums: (i) an amount equal to the sum of (a) the Base Salary, as in effect Salary on the Termination Date, payable over Date for the shorter of (x) twelve (12) month months and (y) the remainder of the Term (the applicable period following the Termination Date (being referred to as the “Severance Period”) and (b) an amount equal to the Target Bonus), payable in a lumpmonthly install-sum within five (5) Business Days following the Termination Datements; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the earlier of (x) the end of the Severance Period and (y) the date upon which the Executive commences employment with any other PersonPeriod; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plansCompany’s pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable programs; and (iv) so long as the Company has achieved its budgeted EBITDA level for the period commencing with the end of the Company’s immediately previous fiscal year through the Termination Date, an amount equal to the Company which benefitsproduct of the bonus paid to the Executive in respect of the immediately preceding fiscal year pursuant to Section 3(g), if anytimes the quotient obtained by dividing (x) the number of full calendar months occurring since the end of the immediately previous fiscal year through the Termination Date, shall be payable as provided thereinby (y) 12. If, prior to the end date on which the Company’s obligations under clause (i) of the Severance Periodthis Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates the Term this Agreement is terminated pursuant to Section 4(d) hereof any of Sections 4.1, 4.2, 4.4 or the Executive terminates the Term pursuant to Section 4(e) hereof4.5, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination of the Tern specified in the Company’s or Executive’s notice, as the case may be notice (the “Termination Date”), and, subject to the final sentence of this Section 5(a), and the Company shall pay to the Executive, subject to Sections 5(c), Section 6 and 7(e) hereof, the following sums: (i) an amount equal to during the sum first year of (a) employment, the Base Salary, as in effect Salary on the Termination Date, payable over the twelve Date for nine (129) month period following the Termination Date months (the “Severance Period”) and (b) an amount equal to the Target Bonus), payable in a lump-sum within five (5) Business Days following installments in accordance with the Company’s normal payroll practices; after the first year of employment, the severance payments shall be the Base Salary on the Termination DateDate for twelve (12) months, payable in installments in accordance with the Company’s normal payroll practices; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive has participated prior in and may continue to termination participate in as a non-employee through the earlier of (x) the end of the Severance Period Period; and (y) the date upon which the Executive commences employment with any other Person; (iii) all accrued and unpaid Base Salary through the Termination Date; (iv) any accrued but unpaid Bonus in respect of any fiscal year ending prior to the fiscal year in which the Termination Date falls (which shall be paid notwithstanding any requirement that the Executive otherwise be employed by the Company on the date of the payment of such Bonus); (v) any unpaid or unreimbursed expenses incurred by the Executive through the Termination Date in accordance with Section 3(d) hereof; and (vi) to the extent permitted under the applicable plans, programs or policies, if any, all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits which have become vested prior to the Termination Date under the retirement plansCompany’s pension, and any other such benefits under disability, and life insurance plans, policies, and programs applicable to in which the Company which benefits, if any, shall be payable as provided thereinExecutive has participated. If, prior to the end date on which the Company’s obligations under clause (i) of the Severance Periodthis Section 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be postponed to the earliest business day on which the Company reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the first business day after the six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a benefit can likely be avoided by replacing the benefit with the payment of an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu of providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and the Executive may agree to take other actions to avoid the imposition of such 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the prime or base lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided.