Common use of Exceptions to Benefit Entitlement Clause in Contracts

Exceptions to Benefit Entitlement. An employee who otherwise is an Eligible Employee will not receive benefits under the Plan (or will receive reduced benefits under the Plan) in the following circumstances, as determined by the Company in its sole discretion: (1) The employee is covered by any other severance or separation pay plan, policy or practice of the Company or has executed an individually negotiated employment contract or agreement with the Company relating to severance benefits, in either case with respect to severance benefits payable upon an event that constitutes a Qualifying Termination (used herein as defined herein), and such agreement, plan, policy or practice is in effect on his or her termination date. In such case, the employee’s severance benefit upon a Qualifying Termination, if any, shall be governed by the terms of such agreement, plan, policy or practice and shall be governed by this Plan only to the extent that (i) the employee elects to waive and release all claims and rights the employee has to severance pay or benefits upon a Qualifying Termination under such agreement, plan, policy, or practice or (ii) the reduction pursuant to Section 3(c) below does not entirely eliminate benefits under this Plan. (2) The employee’s employment terminates other than as a result of a Qualifying Termination (including a termination for Cause prior to the effective date of a previously scheduled Qualifying Termination, a termination as a result of death or disability, or the employee voluntarily terminates employment with the Company other than as a Resignation for Good Reason. Voluntary terminations include, but are not limited to, resignation, retirement, failure to return from a leave of absence on the scheduled date and/or termination in order to accept employment with another entity (including but not limited to any entity that is wholly or partly owned (directly or indirectly) by the Company or an affiliate of the Company.)). (3) The employee has not signed an enforceable Proprietary Agreement covering the employee’s period of employment with the Company (and with any predecessor) and does not confirm in writing that he or she is and shall remain subject to the terms of that Proprietary Agreement. (4) Following notice of a Qualifying Termination, the employee’s behavior rises to level of Cause for termination.

Exceptions to Benefit Entitlement. An employee, including an employee who otherwise is an Eligible Employee Employee, will not receive benefits under the Plan (or will receive reduced benefits under the Plan) in the following circumstances, as determined by the Company Plan Administrator in its sole discretion: (i) With respect to the benefits provided pursuant to Section 4(a)(i): (1) The employee is covered by any other severance has executed an individually negotiated employment contract or separation pay plan, policy or practice of agreement with the Company relating to change in control benefits (except those provided pursuant to an equity compensation plan or program maintained by the Company) that is in effect on the effective date of a Change in Control and which provides benefits that the Plan Administrator, in its sole discretion, determines to be of greater value than the benefits provided for in this Plan, in which case such employee’s change in control benefit, if any, shall be governed by the terms of such individually negotiated employment contract or agreement and shall be governed by this Plan only to the extent that the reduction pursuant to Section 5(b) below does not entirely eliminate benefits under this Plan. (ii) With respect to the benefits provided pursuant to Section 4(a)(ii): (1) The employee has executed an individually negotiated employment contract or agreement with the Company relating to severance benefits, or change in either case with respect control benefits (except those provided pursuant to severance benefits payable upon an event equity compensation plan or program maintained by the Company) that constitutes a Qualifying Termination (used herein as defined herein), and such agreement, plan, policy or practice is in effect on his or her termination date. In date and which provides benefits that the Plan Administrator, in its sole discretion, determines to be of greater value than the benefits provided for in this Plan, in which case such case, the employee’s severance benefit upon a Qualifying Terminationor change in control benefit, if any, shall be governed by the terms of such agreement, plan, policy individually negotiated employment contract or practice agreement and shall be governed by this Plan only to the extent that (i) the employee elects to waive and release all claims and rights the employee has to severance pay or benefits upon a Qualifying Termination under such agreement, plan, policy, or practice or (ii) the reduction pursuant to Section 3(c5(b) below does not entirely eliminate benefits under this Plan. (2) The employee is entitled to receive benefits under another severance benefit plan maintained by the Company (e.g., the Anesiva, Inc. Severance Benefit Plan). (3) The employee’s employment terminates or is terminated for any reason other than as a result of a Qualifying Termination Covered Termination. (including a termination for Cause prior to the effective date of a previously scheduled Qualifying Termination, a termination as a result of death or disability, or the 4) The employee voluntarily terminates employment with the Company other than as a Resignation for Good Reason. Voluntary terminations include, but are not limited to, resignation, retirement, failure to return from a leave of absence on the scheduled date and/or termination in order to accept employment with another entity (including but not limited to any entity that is wholly or partly owned controlled (directly or indirectly) by the Company or is otherwise an affiliate of the Company.)). (35) The employee has not signed an enforceable Proprietary Agreement covering the employee’s period of employment with the Company (and with any predecessor) and does not confirm in writing that he or she is and shall remain be subject to the terms of that Proprietary AgreementCompany’s proprietary information or confidentiality agreement with the Company. (46) Following notice The employee is rehired by the Company prior to the date benefits under the Plan are scheduled to commence. (7) The employee is offered an identical or substantially equivalent or comparable position with the Company or a successor pursuant to a Change in Control. For purposes of the foregoing, a Qualifying Termination, “substantially equivalent or comparable position” is one that offers the employee’s behavior rises to employee substantially the same level of Cause for terminationresponsibility and compensation; provided, however, that an employee shall not be considered to be offered a “substantially equivalent or comparable position” if a voluntary termination by the employee would constitute Constructive Termination.

Exceptions to Benefit Entitlement. An employee who otherwise is an Eligible Employee A Participant will not receive benefits under the Plan (or will receive reduced benefits under the Plan) in the following circumstances, as determined by the Company Plan Administrator in its sole discretion: (1i) The employee is covered by any other severance or separation pay plan, policy or practice of the Company or Participant has executed an individually negotiated employment contract or agreement with the Company relating to severance benefits, or change in either case with respect to severance control benefits payable upon an event that constitutes a Qualifying Termination (used herein as defined herein), and such agreement, plan, policy or practice is in effect on his or her termination date. In date and which provides benefits that the Plan Administrator, in its sole discretion, determines to be of greater value than the benefits provided for in this Plan, in which case such case, the employeeParticipant’s severance benefit upon a Qualifying Terminationbenefit, if any, shall be governed by the terms of such agreement, plan, policy individually negotiated employment contract or practice agreement and shall be governed by this Plan only to the extent that (i) the employee elects to waive and release all claims and rights the employee has to severance pay or benefits upon a Qualifying Termination under such agreement, plan, policy, or practice or (ii) the reduction pursuant to Section 3(c5(b) below does not entirely eliminate benefits under this Plan. (2ii) The employeeParticipant is entitled to receive benefits under another severance benefit plan maintained by the Company (e.g., the iPass Inc. Severance Benefit Plan) on his or her termination date and which provides benefits that the Plan Administrator, in its sole discretion, determines to be of greater value than the benefits provided for in this Plan, in which case such Participant’s severance benefit, if any, shall be governed by the terms of such other severance benefit plan and shall be governed by this Plan only to the extent that the reduction pursuant to Section 5(b) below does not entirely eliminate benefits under this Plan. (iii) The Participant’s employment terminates or is terminated for any reason other than as a result of a Qualifying Termination (including a termination for Cause prior to the effective date of a previously scheduled Qualifying Covered Termination, a termination as a result of death or disability, or the employee voluntarily terminates employment with the Company other than as a Resignation for Good Reason. Voluntary terminations include, but are not limited to, resignation, retirement, failure to return from a leave of absence on the scheduled date and/or termination in order to accept employment with another entity (including but not limited to any entity that is wholly or partly owned (directly or indirectly) by the Company or an affiliate of the Company.)). (3iv) The employee has not signed an enforceable Proprietary Agreement covering the employee’s period of employment with the Company (and with any predecessor) and Participant does not confirm in writing that he or she is and shall remain be subject to the terms of that Company’s Employee Proprietary Information and Inventions Agreement. (4v) Following notice The Participant has failed to execute or has revoked the release within the applicable period of time specified in Section 5(a). (vi) The Participant has failed to return all Company Property. For this purpose, “Company Property” means all paper and electronic Company documents (and all copies thereof) created and/or received by the Participant during his or her period of employment with the Company and other Company materials and property which the Participant has in his or her possession or control, including, but not limited to, Company files, notes, drawings records, plans, forecasts, reports, studies, analyses, proposals, agreements, financial information, research and development information, sales and marketing information, operational and personnel information, specifications, code, software, databases, computer-recorded information, tangible property and equipment (including, but not limited to, leased vehicles, computers, computer equipment, software programs, facsimile machines, mobile telephones, servers), credit and calling cards, entry cards, identification badges and keys; and any materials of any kind which contain or embody any proprietary or confidential information of the Company (and all reproductions thereof in whole or in part). As a Qualifying Terminationcondition to receiving benefits under the Plan, Participants must not make or retain copies, reproductions or summaries of any such Company documents, materials or property. However, a Participant is not required to return his or her personal copies of documents evidencing the employeeParticipant’s behavior rises to level hire, termination, compensation, benefits and stock options and any other documentation received as a shareholder of Cause for terminationthe Company.