Common use of Incapacity of Executive Clause in Contracts

Incapacity of Executive. If the Executive suffers from a physical or mental condition that qualifies the Executive for benefits under the Company’s Long Term Disability policy (or would qualify the Executive for benefits if the Executive was covered by the Long Term Disability policy), the Executive’s employment may be terminated by the Company, in which event, the Company will pay Executive a lump sum equal to twelve months’ Base Salary in effect on the Termination Date (or, if greater, the highest Base Salary in effect during the three year period ending on the Termination Date), which shall be paid within 60 days following the Termination Date. However, if, on the Termination Date, the Executive is a “specified employee” as defined in regulations under Section 409A of the Code and the termination payment is “nonqualified deferred compensation” that is subject to Section 409A and is considered to be triggered by the Executive’s “separation from service,” such payment will be made on the first payroll payment date which is more than six months following the Termination Date. Notwithstanding the foregoing, the amount payable hereunder will be reduced by any benefits payable under any disability plans provided by the Company under paragraph 4.4 of this Agreement. The right to the compensation due under this paragraph 6.5 is subject to the execution and nonrevocation by the Executive or the Executive’s legal representative of the Company’s Separation Agreement and General Release, substantially in the form attached to this Agreement, which will operate as a release of all legally waivable claims against the Company and its affiliates, employees and directors. In applying this paragraph, the Company will comply with any applicable legal requirements, including the Americans with Disabilities Act.

Incapacity of Executive. If the Executive suffers from a physical or mental condition that qualifies the Executive for benefits under the Company’s Long Term Disability policy (or would qualify the Executive for benefits if the Executive was covered by the Long Term Disability policy), the Executive’s employment may 72178517.2 be terminated by the Company, in which event, the Company will pay Executive a lump sum equal to twelve months’ Base Salary in effect on the Termination Date (or, if greater, the highest Base Salary in effect during the three year period ending on the Termination Date), which shall be paid within 60 days following the Termination Date. However, if, on the Termination Date, the Executive is a “specified employee” as defined in regulations under Section 409A of the Code and the termination payment is “nonqualified deferred compensation” that is subject to Section 409A and is considered to be triggered by the Executive’s “separation from service,” such payment will be made on the first payroll payment date which is more than six months following the Termination Date. Notwithstanding the foregoing, the amount payable hereunder will be reduced by any benefits payable under any disability plans provided by the Company under paragraph 4.4 of this Agreement. The right to the compensation due under this paragraph 6.5 is subject to the execution and nonrevocation by the Executive or the Executive’s legal representative of the Company’s Separation Agreement and General Release, substantially in the form attached to this Agreement, which will operate as a release of all legally waivable claims against the Company and its affiliates, employees and directors. In applying this paragraph, the Company will comply with any applicable legal requirements, including the Americans with Disabilities Act.

Incapacity of Executive. If the Executive suffers from a physical or mental condition that qualifies the Executive for benefits under the Company’s Long Term Disability policy (or would qualify the Executive for benefits if the Executive was covered by the Long Term Disability policy), the Executive’s employment may be terminated by the Company, in which event, the Company will pay the Executive a lump sum equal to twelve months’ Base Salary in effect on the Termination Date (or, if greater, the highest Base Salary in effect during the three year period ending on the Termination Date), which shall be paid within 60 days following the Termination Date. However, if, on the Termination Date, the Executive is a “specified employee” as defined in regulations under Section 409A of the Code and the termination payment is “nonqualified deferred compensation” that is subject to Section 409A and is considered to be triggered by the Executive’s “separation from service,” such payment will be made on the first payroll payment date which is more than six months following the Termination Date. Notwithstanding the foregoing, the amount payable hereunder will be reduced by any benefits payable under any disability plans provided by the Company under paragraph 4.4 of this Agreement. The right to the compensation due under this paragraph 6.5 is subject to the execution and nonrevocation by the Executive or the Executive’s legal representative of the Company’s Separation Agreement and General Release, substantially in the form attached to this Agreement, which will operate as a release of all legally waivable claims against the Company and its affiliates, employees and directors. In applying this paragraph, the Company will comply with any applicable legal requirements, including the Americans with Disabilities Act.