Common use of Good Reason; Without Cause; Death or Disability Clause in Contracts

Good Reason; Without Cause; Death or Disability. If, during the Change of Control Period, NBI shall terminate the Executive’s employment without Cause, the Executive shall terminate employment for Good Reason or the Executive’s employment terminates for death or Disability, and subject to the limitation set forth in Section 4(c), NBI shall pay to the Executive within 30 days after the Date of Termination as severance pay and liquidated damages a lump sum amount equal to the sum of the (a) Annual Base Salary and (b) the Incentive Compensation, which amount shall be in lieu of any other severance benefits that the Executive might otherwise have been entitled to under any other plan, practice, arrangement or agreement of NBI. In addition, for the “Severance Period, NBI may continue to provide to the Executive, to the extent practicable, the benefits to which the Executive would otherwise have been entitled; provided, however, that in lieu of providing health benefits, NBI shall pay the Executive an amount equal to the difference between (x) the cost of COBRA health continuation coverage that would be charged by NBI to a former employee and eligible dependents for the greater of the Severance Period or the period during which the Executive and his eligible dependents are entitled to COBRA health continuation coverage from NBI and (y) the amount for which the Executive would have been responsible to pay under the health benefit plans in effect for the Executive immediately prior to his termination. To the extent NBI determines that the continuation of any other benefits by NBI is not practicable, NBI shall pay the Executive an amount equal to what would have been NBI’s cost of providing the coverage for such benefits during the Severance Period to the Executive and his eligible dependents as if the coverage had continued. Notwithstanding the above provisions of this Section 4(a), NBI may elect to retain the Executive on the payroll of NBI or an Affiliated Company (with existing benefits continuing through standard payroll deduction) for all or any part of the Severance Period in lieu of the payment of a lump sum; provided that such election by NBI shall not reduce the total amount due to Executive by NBI pursuant to this Section 4(a).

Good Reason; Without Cause; Death or Disability. If, during the Change of Control Employment Period, NBI the Company shall terminate the Executive’s employment without Cause, Without Cause or for Death or Disability or the Executive shall terminate employment for Good Reason or Reason: (i) the Executive’s employment terminates for death or Disability, and subject to the limitation set forth in Section 4(c), NBI Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: (A) the sum of (1) the Executive’s Annual Base Salary through the Date of Termination, (2) a pro rata portion of the Executive’s Annual Bonus for the year in which the Date of Termination occurs, based on the number of days of employment that year up to the Date of Termination divided by 365 days, ) and (3) any accrued paid time off pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (3) shall be hereinafter referred to as severance pay and liquidated damages a lump sum the “Accrued Obligations”); and (B) the amount equal to the sum of the (ax) Annual Base Salary and (by) the Incentive CompensationAnnual Bonus for which the Executive was eligible for the year in which the Date of Termination occurs; and (C) if Executive executes a release of in the form set forth in Exhibit I attached hereto, and said release of claims becomes effective by its terms, the additional amount equal to two times the sum of (x) Annual Base Salary and (y) the Annual Bonus for which amount shall be the Executive was eligible for the year in lieu which the Date of Termination occurs; and (D) a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and any other severance SERP providing benefits for the Executive that the Executive might otherwise would receive if the Executive’s employment continued at the compensation level provided for in Sections 4(b)(i) and (ii) for the remainder of the Employment Period, assuming for this purpose that all accrued normal and early retirement benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and (ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those that would have been entitled provided to under any them in accordance with the plans, programs, practices and policies described in Sections 4(b)(v) and 4(b)(vii) if the Executive’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other planexecutives and their families during the 90-day period immediately preceding the Effective Date or, practice, arrangement or agreement of NBI. In addition, for the “Severance Period, NBI may continue to provide if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as “Welfare Benefit Continuation”) and the Executive shall no longer be entitled to receive fringe benefits from the Company. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; provided, however, that the Executive shall be entitled to the more favorable of the retiree benefits in effect on the Date of Termination or the retiree benefits in effect on the date that would have been the last date of the Employment Period if the Executive had remained employed; and (iii) to the extent practicablenot theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive’s family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive’s family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”); and (iv) if the Executive is age 55 or older, in lieu of receiving monthly benefits under the SERP the Executive may elect, by giving at least 120 days written notice to the Company, to receive the Actuarial Equivalent (as defined in the SERP) lump sum value of the normal form of payment of SERP benefits based upon the retirement benefit payable under the SERP at Executive’s age upon the Date of Termination, or to have such Actuarial Equivalent lump sum value transferred to the Company’s Deferred Compensation Plan or any successor deferred compensation plan. If the Executive is younger than the minimum age for eligibility for payment of SERP benefits, the Executive may elect to receive the discounted present value, using a seven percent discount rate, of the Actuarial Equivalent lump sum value of the SERP benefits to which the Executive would otherwise have been entitled; provided, however, that in lieu of providing health benefits, NBI shall pay be entitled at the Executive an amount equal to the difference between (x) the cost of COBRA health continuation coverage that would be charged by NBI to a former employee and eligible dependents for the greater of the Severance Period or the period during which the Executive and his eligible dependents are entitled to COBRA health continuation coverage from NBI and (y) the amount for which the Executive would have been responsible to pay under the health benefit plans in effect for the Executive immediately prior to his termination. To the extent NBI determines that the continuation of any other benefits by NBI is not practicable, NBI shall pay the Executive an amount equal to what would have been NBI’s cost of providing the coverage for such benefits during the Severance Period to the Executive and his eligible dependents as if the coverage had continued. Notwithstanding the above provisions of this Section 4(a), NBI may elect to retain the Executive on the payroll of NBI or an Affiliated Company (with existing benefits continuing through standard payroll deduction) for all or any part of the Severance Period in lieu of the payment of a lump sum; provided that such election by NBI shall not reduce the total amount due to Executive by NBI pursuant to this Section 4(a)minimum age.

Good Reason; Without Cause; Death or Disability. If, during the Change of Control Employment Period, NBI the Company shall terminate the Executive’s 's employment without Cause, Cause or for Death or Disability or the Executive shall terminate employment for Good Reason or Reason: (i) the Executive’s employment terminates for death or Disability, and subject to the limitation set forth in Section 4(c), NBI Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: (A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination, (2) a pro rata portion of the Executive’s Annual Bonus for the year in which the Date of Termination occurs, based on the number of days of employment that year up to the Date of Termination divided by 365 days,) and (3) any accrued paid time off pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (3) shall be hereinafter referred to as severance pay and liquidated damages a lump sum the "Accrued Obligations"); and (B) the amount equal to the sum of the (ax) Annual Base Salary and (by) the Incentive CompensationAnnual Bonus for which the Executive was eligible for the year in which the Date of Termination occurs; and (C) if Executive executes a release of in the form set forth in Exhibit I attached hereto, and said release of claims becomes effective by its terms, the additional amount equal to two times the sum of (x) Annual Base Salary and (y) the Annual Bonus for which amount shall be the Executive was eligible for the year in lieu which the Date of Termination occurs; and (D) a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and any other severance SERP providing benefits for the Executive that the Executive might otherwise would receive if the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and (ii) for the remainder of the Employment Period, assuming for this purpose that all accrued normal and early retirement benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and (ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those that would have been entitled provided to under any them in accordance with the plans, programs, practices and policies described in Sections 4(b)(v) and 4(b)(vii) if the Executive's employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other planexecutives and their families during the 90-day period immediately preceding the Effective Date or, practice, arrangement or agreement of NBI. In addition, for the “Severance Period, NBI may continue to provide if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the extent practicable, the benefits to which the Executive would otherwise have been entitledCompany and its affiliated companies and their families; provided, however, that in lieu of providing health benefits, NBI shall pay if the Executive an amount equal becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation") and the Executive shall no longer be entitled to receive fringe benefits from the Company. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; provided, however, that the Executive shall be entitled to the difference between (x) more favorable of the cost retiree benefits in effect on the Date of COBRA health continuation coverage Termination or the retiree benefits in effect on the date that would be charged by NBI to a former employee and eligible dependents for have been the greater last date of the Severance Employment Period if the Executive had remained employed; and (iii) to the extent not theretofore paid or provided, the period during Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and his and/or the Executive's family is eligible dependents are entitled to COBRA health continuation coverage from NBI and (y) the amount for which the Executive would have been responsible to pay under the health benefit plans in effect for the Executive immediately prior to his termination. To the extent NBI determines that the continuation of any other benefits by NBI is not practicable, NBI shall pay the Executive an amount equal to what would have been NBI’s cost of providing the coverage for such benefits during the Severance Period to the Executive and his eligible dependents as if the coverage had continued. Notwithstanding the above provisions of this Section 4(a), NBI may elect to retain the Executive on the payroll of NBI or an Affiliated Company (with existing benefits continuing through standard payroll deduction) for all or any part of the Severance Period in lieu of the payment of a lump sum; provided that such election by NBI shall not reduce the total amount due to Executive by NBI receive pursuant to this Section 4(aAgreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").

Good Reason; Without Cause; Death or Disability. If, during the Change of Control Employment Period, NBI the Company shall terminate the Executive’s employment without Cause, Without Cause or for Death or Disability or the Executive shall terminate employment for Good Reason or Reason: (i) the Executive’s employment terminates for death or Disability, and subject to the limitation set forth in Section 4(c), NBI Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: (A) the sum of (1) the Executive’s Annual Base Salary through the Date of Termination, (2) a pro rata portion of the Executive’s Annual Bonus for the year in which the Date of Termination occurs, based on the number of days of employment that year up to the Date of Termination divided by 365 days,) and (3) any accrued paid time off pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (3) shall be hereinafter referred to as severance pay and liquidated damages a lump sum the “Accrued Obligations”); and (B) the amount equal to the sum of the (ax) Annual Base Salary and (by) the Incentive CompensationAnnual Bonus for which the Executive was eligible for the year in which the Date of Termination occurs; and (C) if Executive executes a genera; release in the form set forth in Exhibit I attached hereto, and said release of claims becomes effective by its terms, the additional amount equal to two times the sum of (x) Annual Base Salary and (y) the Annual Bonus for which amount shall be the Executive was eligible for the year in lieu which the Date of Termination occurs; and (D) a separate lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and any other severance SERP providing benefits for the Executive that the Executive might otherwise would receive if the Executive’s employment continued at the compensation level provided for in Sections 4(b)(i) and (ii) for the remainder of the Employment Period, assuming for this purpose that all accrued normal and early retirement benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Effective Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive’s actual benefit (paid or payable), if any, under the Retirement Plan and the SERP; and (ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those that would have been entitled provided to under any them in accordance with the plans, programs, practices and policies described in Sections 4(b)(v) and 4(b)(vii) if the Executive’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its Affiliated Companies as in effect and applicable generally to other planexecutives and their families during the 90-day period immediately preceding the Effective Date or, practice, arrangement or agreement of NBI. In addition, for the “Severance Period, NBI may continue to provide if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its Affiliated Companies and their families; provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as “Welfare Benefit Continuation”) and the Executive shall no longer be entitled to receive fringe benefits from the Company. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; provided, however, that the Executive shall be entitled to the more favorable of the retiree benefits in effect on the Date of Termination or the retiree benefits in effect on the date that would have been the last date of the Employment Period if the Executive had remained employed; and (iii) to the extent practicablenot theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive’s family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive’s family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its Affiliated Companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its Affiliated Companies and their families (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”); and (iv) if the Executive is age 55 or older, in lieu of receiving monthly benefits under the SERP the Executive may elect, by giving at least 120 days written notice to the Company, to receive the Actuarial Equivalent (as defined in the SERP) lump sum value of the normal form of payment of SERP benefits based upon the retirement benefit payable under the SERP at Executive’s age upon the Date of Termination, or to have such Actuarial Equivalent lump sum value transferred to the Company’s Deferred Compensation Plan or any successor deferred compensation plan. If the Executive is younger than the minimum age for eligibility for payment of SERP benefits, the Executive may elect to receive the discounted present value, using a seven percent discount rate, of the Actuarial Equivalent lump sum value of the SERP benefits to which the Executive would otherwise have been entitled; provided, however, that in lieu of providing health benefits, NBI shall pay be entitled at the Executive an amount equal to the difference between (x) the cost of COBRA health continuation coverage that would be charged by NBI to a former employee and eligible dependents for the greater of the Severance Period or the period during which the Executive and his eligible dependents are entitled to COBRA health continuation coverage from NBI and (y) the amount for which the Executive would have been responsible to pay under the health benefit plans in effect for the Executive immediately prior to his termination. To the extent NBI determines that the continuation of any other benefits by NBI is not practicable, NBI shall pay the Executive an amount equal to what would have been NBI’s cost of providing the coverage for such benefits during the Severance Period to the Executive and his eligible dependents as if the coverage had continued. Notwithstanding the above provisions of this Section 4(a), NBI may elect to retain the Executive on the payroll of NBI or an Affiliated Company (with existing benefits continuing through standard payroll deduction) for all or any part of the Severance Period in lieu of the payment of a lump sum; provided that such election by NBI shall not reduce the total amount due to Executive by NBI pursuant to this Section 4(a)minimum age.