Change in Control Severance If, following the occurrence of a Change in Control, the Company or an Affiliate terminates the Executive's employment during the Post-Change Period other than as described in clause (i), (ii) or (iii) of Section 8(a), or if the Executive terminates his employment pursuant to Section 8(b), the Executive shall not be entitled to the severance compensation described in Section 7, and the Company will (i) pay or cause to be paid to the Executive the amounts described in Sections 8(c)(1), 8(c)(2), 8(c)(3), 8(c)(6) and 8(c)(7) within five business days after the Termination Date; (ii) pay or cause to be paid to the Executive the amount described in Section 8(c)(4), such amount to be payable no earlier than the date on which such Incentive Pay, if any, would have been paid under the applicable plan or policy of the Company absent such termination of employment; and (iii) provide the Executive the benefits described in Section 8(c)(5) for the period described therein.
(1) A lump sum payment in an amount equal to all Base Pay and Incentive Pay (other than for the calendar year of such termination of employment) owed to the Executive for periods on or prior to the Termination Date.
(2) A lump sum payment in an amount equal to two times the Executive's base salary pursuant to Section 4(a) (at the rate in effect immediately prior to the Termination Date).
(3) A lump sum payment equal to two times Incentive Pay (in an amount equal to the highest amount of Incentive Pay earned by the Executive in any calendar year during the three calendar years immediately preceding the calendar year in which the Change in Control occurred).
(4) In the event that the Termination Date occurs after June 30 in any calendar year, a lump sum payment equal to one times Incentive Pay for such calendar year, multiplied by a fraction, the numerator of which is the number of days between (and including) January 1 of the calendar year in which the Termination Date occurs and the Termination Date, and the denominator of which is 365.
(5) For a period of 24 months following the Termination Date (the "Continuation Period"), the Company will provide the Executive with medical, dental and life insurance benefits consistent with the terms in effect for such benefits for active employees of the Company during the Continuation Period. If and to the extent that any benefit described in this Section 8(c)(5) is not or cannot be paid or provided under any Company plan or program, then the Company will pay or provide for the payment to the Executive, his dependants and beneficiaries, of such employee benefits. Without otherwise limiting the purposes of Section 8(d), employee benefits otherwise receivable by the Executive pursuant to this Section 8(c)(5) will be reduced to the extent comparable welfare benefits are actually received by the Executive from another employer during the Continuation Period following the Executive's Termination Date, and any such benefits actually received by the Executive shall be reported by the Executive to the Company.
(6) The Company will pay to the Executive the cost of employee outplacement services for the Executive in the amount of $30,000.
(7) The Company will pay the Executive a two-year automobile allowance in the amount provided to the Executive immediately prior to the Termination Date.
Severance Agreement Any payments of compensation made pursuant to Articles 4 and 5 are contingent on Executive executing the Company’s standard severance agreement, including a general release of the Company, its owners, partners, stockholders, directors, officers, employees, independent contractors, agents, attorneys, representatives, predecessors, successors and assigns, parents, subsidiaries, affiliated entities and related entities, and on Executive’s continued compliance with Section 6. Executive must execute the standard severance agreement and release within 45 days of being provided with the document to sign or the severance agreement offer will expire.
Termination and Severance Executive shall be entitled to receive benefits upon termination of employment only as set forth in this Section 4:
Termination and Severance Pay A. In the event Employee is terminated by the Board before the expiration of the term of this agreement without just cause, and during that time Employee is willing and able to perform his duties under this Agreement, the Board shall continue to pay Employee's salary for a period of four (4) months after the date of termination (the "Severance Period") and shall continue Employee's then current health insurance coverage for a period of four (4) months. In the event Employer is not able to maintain Employee's health insurance coverage pursuant to the terms of the Township health insurance plan, then Employer shall pay to Employee, for a period of four (4) months, the cost of health insurance premiums at a rate that will continue substantially similar health benefits for Employee and Employee's family, if applicable, as provided under the then current township health insurance plan. In addition, the Board shall pay the cash value of any accrued vacation time. All of the above shall hereinafter be referred to as the Severance Compensation. The parties agree that this Severance Compensation shall constitute Employee's sole and exclusive remedy for termination without just cause
B. In the event Employee is terminated by the Board before the expiration of the term of this agreement with just cause, the Board shall have no obligation to pay the Severance Compensation set forth in Section 3A.
C. In the event the Board, at any time during the term of this Agreement, reduces the salary or other financial benefits of Employee in a greater percentage than an applicable across- the-board reduction for all employees of the Board, or in the event the Board refuses, following written notice, to comply with any other provision benefiting Employee herein, or Employee resigns following a written request by the Board that he resign, then, in that event, Employee may, at his option, be deemed to be "terminated without just cause" as of the date of such reduction, refusal to comply, or written request and Employee shall be entitled to the Severance Compensation as set forth in Section 3A. as if he were terminated without cause. For the purposes of this paragraph, the Board's failure to grant Employee a raise equivalent to that given any or all other Township Employees shall not be deemed a "reduction" as provided herein.
D. In the event Employee desires to voluntarily resign his position with the Board before the expiration of the above term of this employment, then Employee shall give the Board thirty (30) days notice in advance, unless the parties agree otherwise in writing. In the event the Employee voluntarily resigns his position, he shall not be entitled to the severance pay provisions contained in Section 3A hereof.
E. For the purposes of Section 3. hereof, "just cause" shall mean the following:
(a) The Employee is convicted of a felony;
(b) The Employee has failed or neglected to carry out his duties hereunder in any material and significant respect, or has been guilty of misfeasance, malfeasance, or nonfeasance in office for a period of thirty (30) days after written notice to him from the Board specifying the nature of such failure, neglect, misfeasance, malfeasance, or nonfeasance in office, unless such misfeasance, malfeasance, or nonfeasance is so egregious or of such a nature that it is of a criminal nature or it cannot be corrected.
F. If the Employee is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, mental incapacity or health for a period of eight successive weeks beyond any accrued sick leave and vacation time, the Board shall have the option to terminate this Agreement, and Employee shall receive the Severance Compensation set forth under Paragraph 3A. above.
Change in Control Severance Benefits If there is a Change in Control, and within one (1) year of such Change in Control, the Executive’s employment is terminated under the circumstances described in Sections 4(a) through 4(f) above, the Executive shall be entitled to the following: (I) if such termination is a termination by the Company without Cause pursuant to Section 4(a) or the Executive resigns for Good Reason pursuant to Section 4(b), the Company shall pay the Executive the Accrued Obligations and the Pro Rata Bonus and, in addition, subject to the provisions of Section 19, (A) an amount equal to twenty-four (24) months of the Executive’s Base Salary at the rate in effect on the date of termination or resignation, payable in a lump sum within sixty (60) calendar days of the date of termination or resignation; and (B) provided the Executive timely elects continuation coverage under COBRA, the Company shall also pay, on the Executive’s behalf, the portion of monthly premiums for the Executive’s group health insurance, including coverage for the Executive’s dependents, that the Company paid immediately prior to the date of termination or resignation, during the eighteen (18) month period following the date of termination or resignation, subject to the Executive’s continued eligibility for COBRA coverage. The Company will pay for such COBRA coverage for eligible dependents only for those dependents who were enrolled immediately prior to the date of termination or resignation. The Executive will continue to be required to pay that portion of the premium for the Executive’s health coverage, including coverage for the Executive’s eligible dependents, that the Executive was required to pay as an active employee immediately prior to the date of termination or resignation. Notwithstanding the foregoing, in the event that under applicable guidance the reimbursement of COBRA premiums causes the Company’s group health plan to violate any applicable nondiscrimination rule, the parties agree to negotiate in good faith a mutually agreeable alternative arrangement; and (II) if such termination is a termination or resignation under the circumstances described in Sections 4(c), 4(d), 4(e) or 4(f), the Executive shall be entitled to the compensation and benefits for which the Executive is eligible under such sections.
Change of Control Severance In addition to the rights of the Employee under the Company’s employee benefit plans (paragraphs C of Section 3 above) but in lieu of any severance payment under paragraph F of this Section 4 above, if there is a Change in Control of the Company (as defined below) and the employment of the Employee is concurrently or subsequently terminated (a) by the Company without cause, (b) by the expiration of the Term of this Employment Agreement, or (c) by the resignation of the Employee because he has reasonably determined in good faith that his titles, authorities, responsibilities, salary, bonus opportunities or benefits have been materially diminished, that a material adverse change in his working conditions has occurred, that his services are no longer required in light of the Company’s business plan, or the Company has breached this Employment Agreement, the Company shall pay the Employee, as a severance payment, at the time of such termination, ___ ($___), together with the value of any accrued but unused vacation time, and the amount of all accrued but previously unpaid base salary through the date of termination and shall provide him with all of the Employee benefits under paragraph C of Section 3 above for the longer of ___ (___) months or the full unexpired Term of this Employment Agreement. The Company shall promptly reimburse the Employee for the amount of any expenses incurred prior to such termination by the Employee as required under paragraph F of Section 3 above. For the purpose of this Employment Agreement, a Change in Control of the Company has occurred when: (a) any person (defined for the purposes of this paragraph G to mean any person within the meaning of Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than Neoprobe, an employee benefit plan created by its Board of Directors for the benefit of its employees, or a participant in a transaction approved by its Board of Directors for the principal purpose of raising additional capital, either directly or indirectly, acquires beneficial ownership (determined under Rule 13d-3 of the Regulations promulgated by the Securities and Exchange Commission under Section 13(d) of the Exchange Act) of securities issued by Neoprobe having thirty percent (30%) or more of the voting power of all the voting securities issued by Neoprobe in the election of Directors at the next meeting of the holders of voting securities to be held for such purpose; (b) a majority of the Directors elected at any meeting of the holders of voting securities of Neoprobe are persons who were not nominated for such election by the Board of Directors or a duly constituted committee of the Board of Directors having authority in such matters; (c) the stockholders of Neoprobe approve a merger or consolidation of Neoprobe with another person other than a merger or consolidation in which the holders of Neoprobe’s voting securities issued and outstanding immediately before such merger or consolidation continue to hold voting securities in the surviving or resulting corporation (in the same relative proportions to each other as existed before such event) comprising eighty percent (80%) or more of the voting power for all purposes of the surviving or resulting corporation; or (d) the stockholders of Neoprobe approve a transfer of substantially all of the assets of Neoprobe to another person other than a transfer to a transferee, eighty percent (80%) or more of the voting power of which is owned or controlled by Neoprobe or by the holders of Neoprobe’s voting securities issued and outstanding immediately before such transfer in the same relative proportions to each other as existed before such event. The parties hereto agree that for the purpose of determining the time when a Change of Control has occurred that if any transaction results from a definite proposal that was made before the end of the Term of this Employment Agreement but which continued until after the end of the Term of this Employment Agreement and such transaction is consummated after the end of the Term of this Employment Agreement, such transaction shall be deemed to have occurred when the definite proposal was made for the purposes of the first sentence of this paragraph G of this Section 4.
Change of Control Severance Benefits (a) If during the Change of Control Period Cascade shall terminate Executive’s employment other than for Cause, or Executive shall terminate employment with Cascade for Good Reason, Cascade shall: (i) pay Executive (or in the event of Executive’s subsequent death, Executive’s beneficiary or estate, as the case may be), as severance pay, a sum equal to two (2) times the salary and bonus paid by Cascade to Executive during the twelve (12) month period ending on the last day of the month preceding the effective date of a Change of Control (excluding any gains resulting from exercise of stock options or vesting of restricted stock awards or other similar forms of stock compensation); (ii) cause to be continued for twenty-four (24) months after the effective date of a Change of Control, life, medical, dental, and disability coverage substantially identical to the coverage maintained by Cascade for Executive prior to the effective date of a Change of Control, except to the extent such coverage may be changed in its application to all Cascade employees on a nondiscriminatory basis; and (iii) accelerate any unvested stock-based compensation so any such stock-based compensation shall be 100% vested and immediately exercisable in full as of the date of such termination. Payments due under (i) above shall be paid to Executive in a lump sum no sooner than six (6) months after the date of Executive’s termination.
(b) Notwithstanding the provisions of Section 1(a) above, if a payment to Executive who is a “disqualified individual” shall be in an amount which includes an “excess parachute payment,” the payment hereunder to Executive shall be reduced to the maximum amount which does not include an “excess parachute payment.” The terms “disqualified individual” and “excess parachute payment” shall have the meaning defined in Section 280G of the Internal Revenue Code of 1986, as amended.
(c) Executive shall not be required to mitigate the amount of any payment or benefit provided for in Section 1(a) of this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in Section 1(a) of this Agreement be reduced by any compensation earned or benefit received by Executive as the result of employment by another employer. This Agreement shall not be construed as a contract of employment or as providing Executive any right to be retained in the employ of Cascade or any affiliate thereof.
(d) Prior to Executive’s gaining the right to receive, and in exchange for, the severance compensation, benefits and option acceleration provided in Section 3(a), above, to which Executive would not otherwise be entitled, Executive shall first enter into and execute a release substantially in the form attached hereto as Exhibit A (the “Release”) upon Executive’s termination of employment. Unless the Release is executed by Executive and delivered to Cascade within twenty-one (21) days after the termination of Executive’s employment with Cascade, Executive shall not receive any severance benefits provided under this Agreement, acceleration, if any, of Executive’s equity grants/benefits as provided in this Agreement shall not apply and Executive’s equity grants/benefits in such event may be exercised following the date of Executive’s termination only to the extent provided under their originals terms in accordance with the applicable equity plans and agreements.
Termination of Employment and Severance Benefits The Executive’s employment hereunder shall terminate under the following circumstances:
Change in Control Agreement An Agreement Regarding Change in Control in effect between the Company (or the Surviving Entity) and the Employee, if any.
Change in Control Benefits In the event there is a Change in Control, as defined below, and the Executive’s employment hereunder is terminated by the Executive for Good Reason or by the Employer without Cause (other than on account of the Executive’s death or disability), in each case within twelve (12) months either (a) after Executive’s employment has terminated or (b) following a Change in Control, the Executive shall be entitled to be paid, in a single lump sum, severance equal to two (2) years’ salary at that salary rate being paid to Executive as of the date of the Executive’s termination together with an amount equal to one times (1.0x) the average of the Annual Bonus paid to Executive for services during the preceding three (3) calendar years (or the Executive’s period of employment, if less than three (3) years), provided; that, in the event the Executive’s employment has terminated and Executive has been paid a severance benefit under Section 6 of this Agreement, such change in control benefit under this Section 7 shall be reduced by the amount of the severance benefit previously paid. Executive acknowledges and agrees that such payment is in lieu of all damages, payments and liabilities on account of the early termination of this Agreement and is the sole and exclusive remedy for Executive (other than rights, if any, to exercise any of the stock options vested prior to such termination), and shall only be paid, within 60 days after his separation from service with Employer, subject to Executive’s execution and delivery to Employer, within such 60-day period, of a complete release of all claims Executive may have against the Employer, its officers, directors, agents, employees, predecessors, successors, parents, subsidiaries, and affiliates. If the 60-day period referred to in the immediately preceding sentence begins in one calendar year and ends in the following calendar year, then the payment shall be made in the latter calendar year. If upon termination of employment Executive chooses to arbitrate any claims pursuant to Section 18, Executive shall be deemed to have waived Executive’s right, if any, to severance.
