Common use of Separation Arrangements Clause in Contracts

Separation Arrangements. (a) Executive shall be entitled to payment through the Termination Date of the higher of his base salary as of December 31, 2008, or his base salary in effect prior to the Termination Date. Any accrued vacation amount shall also be paid on the Termination Date. Executive agrees to submit to the Company any and all expenses, which are business-related and reimbursable to Executive by the Company, within thirty (30) days after the Termination Date. (b) In consideration of the obligations of Executive herein (including the release in section 3) and subject to Executive’s execution and failure to revoke this Agreement following the Termination Date: (i) The Company shall, on the Termination Date, make a lump sum payment to Executive, of an amount equal to the higher of Executive’s base salary in effect as of December 31, 2008, or his base salary as of the Termination Date plus the higher of the targeted annual bonus (as though such targets had been achieved) in effect for 2008 or for the year preceding the year of the Termination Date, multiplied by one (1) plus the product of two (2) times Executive’s years of service as of the Termination Date divided by fifty-two (52). For purposes of such computation, it is agreed that Executive commenced service with the Company in February 1994 and has continued in service since that time. Executive shall not have the right to make contributions to the Company’s 401(k) savings plan from the base salary payments made under this section 2(b)(i). (ii) Executive shall continue to participate in the Company’s welfare benefit plans, including but not limited to medical benefits, dental benefits, life insurance, and short-term and long-term disability plans, in which he is enrolled or eligible for twenty-four (24) months following the Termination Date, as if he were still employed by the Company, and at the expiration of such twenty-four (24) month period, Executive shall be entitled to COBRA coverage. Notwithstanding the foregoing, in the event that continued participation in welfare benefit plans of the Company would subject Executive to adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amended, the Company shall pay to Executive its portion of any premium under such plans for the relevant twenty-four (24) month period in a cash lump sum, less applicable withholding, on the Termination Date, and Executive may then elect to continue participation in the Company welfare benefit plans for the relevant twenty-four (24) month period, to the extent permitted by law, by paying the entire premium due under such plans, including both the employer and employee portions of such premium. (iii) All outstanding stock options, and other equity grants (including, without limitation, restricted stock, restricted stock units, and warrants) granted to Executive shall become 100% vested and shall be exercisable and otherwise payable in accordance with their terms. (iv) All payments to Executive shall be less all amounts required or authorized to be withheld by applicable federal, state, or local law. (v) Notwithstanding anything herein to the contrary, in the event that Executive is determined to be a specified employee in accordance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance issued thereunder for purposes of any severance pay payment under this Agreement, such severance payments shall be made or begin, as applicable, on the first payroll date which is more than six (6) months following the date of separation from service, to the extent required to avoid the adverse tax consequences to Executive under Section 409A of the Internal Revenue Code of 1986, as amended.

Separation Arrangements. (a) Executive shall be entitled to payment through the Termination Date of the higher of his base salary as of December 31, 2008, or his base salary in effect prior to the Termination Date. Any accrued vacation amount shall also be paid on the Termination Date. Executive agrees to submit to the Company any and all expenses, which are business-related and reimbursable to Executive by the Company, within thirty (30) days after the Termination Date. (b) In consideration of Upon any Constructive Termination or termination by the obligations of Executive herein Company without Cause (including other than upon death or Disability) in addition to the release payments in section 32(a) above, the Executive shall, subject to the provisions of section 2(f) and subject compliance with section 3(a), be entitled to Executive’s execution and failure to revoke this Agreement following the Termination Datefollowing: (i) The Company shall, on the Termination DateRelease Effective Date (as defined below), make a lump sum payment to Executive, of an amount equal to (A) the higher sum of (x) the greater of Executive’s base salary in effect as of December 31, 2008, or his base salary as of the Termination Date Date, plus (y) the higher greater of the targeted target annual bonus (calculated as though such targets had been achieved) in effect for 2008 or for the year preceding the year of the Termination Date, multiplied by (B) the sum of (x) one (1) plus (y) a fraction, the numerator of which is the product of two (2) times Executive’s years of service with the Company as of the Termination Date divided by Date, and the denominator of which is fifty-two (52), provided that the sum set forth in this clause (B) shall in no event exceed two (2). For purposes of such computation, it is agreed that Executive commenced service with the Company in February 1994 and has continued in service with the Company since that time. Executive shall not have the right to make contributions to the Company’s 401(k) savings plan from the base salary payments made under this section 2(b)(i). (ii) To the extent permitted by law and the terms of the applicable welfare benefit plan, and subject to the occurrence of the Release Effective Date, Executive shall continue to participate in the Company’s welfare benefit plans, including but not limited to medical benefits, dental benefits, life insurance, and short-term and long-term disability plans, in which he is enrolled or eligible for twenty-four (24) months following the Termination Date, as if he were still employed by the Company; provided, and however, that if the terms of the applicable welfare benefit plan or plans do not permit such continued participation by Executive, the Company shall, at its option, (A) provide Executive with welfare benefits that are substantially equivalent (on an after-tax basis) to those provided to Executive under the Company’s welfare benefit plans as of the Termination Date, which benefits shall be provided at the Company’s expense (less the amount of any applicable premiums that would have been paid by Executive under the Company’s applicable welfare benefit plan had Executive continued participation thereunder), or (B) reimburse Executive (on an after-tax basis) for the cost of welfare benefits that are substantially equivalent to those provided to Executive under the Company’s welfare benefit plans as of the Termination Date (provided that Executive shall not be reimbursed for the amount of any applicable premiums that would have been paid by Executive under the Company’s applicable welfare benefit plans had Executive continued participation thereunder). At the expiration of such twenty-four (24) month period, Executive shall be entitled to COBRA coverage. Notwithstanding the foregoing. (c) If, in the event that continued participation in welfare benefit plans of the Company would subject Executive to adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amended, the Company shall pay to Executive its portion of any premium under such plans for the relevant within twenty-four (24) month period in months after a cash lump sumChange of Control, less applicable withholding, on the Executive’s employment is terminated due to a Constructive Termination Date, and Executive may then elect to continue participation in or is terminated by the Company welfare benefit plans for the relevant twenty-four without Cause (24) month periodother than upon death or Disability), to the extent permitted by law, by paying the entire premium due under such plans, including both the employer and employee portions of such premium. (iii) All all outstanding stock options, and other equity grants (including, without limitation, restricted stock, restricted stock units, and warrants) granted to Executive shall become 100% vested as of the Termination Date and shall be exercisable and otherwise payable in accordance with their terms. Notwithstanding anything herein or in an applicable restricted stock unit award agreement to the contrary, with respect to any restricted stock units held by Executive, a Constructive Termination shall only be deemed to have occurred if such termination constitutes an “involuntary separation from service” for purposes of Section 409A of the Code. (ivd) All payments to Executive shall be less all amounts required or authorized to be withheld by applicable federal, state, or local law. (ve) Notwithstanding anything herein to the contrary, in the event that Executive is determined to be a specified employee in accordance with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance issued thereunder for purposes of any severance pay payment under this Agreement, such severance payments shall be made or begin, as applicable, on the first payroll date which is more than six (6) months following the date of separation from service, to the extent required to avoid the adverse tax consequences to Executive under Section 409A of the Internal Revenue Code Code. Notwithstanding anything contained herein to the contrary, to the extent required to avoid the adverse tax consequences under Section 409A of 1986the Code, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payments shall be due to him under this Agreement which are payable upon his termination of employment until he would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year. In addition, any right to reimbursement or in-kind benefit granted hereunder shall not be subject to liquidation or exchange for another benefit. (f) Executive agrees that the Executive shall be entitled to the severance pay and benefits as amendedset forth in this Agreement only if Executive does not materially breach the provisions of this Agreement at any time during the period for which such payments or benefits are to be made or provided. The Company’s obligation to make such payments and provide such benefits will terminate upon the occurrence of any such material breach during the severance period.

Separation Arrangements. (a) Executive shall be entitled to payment through the Termination Date In consideration of the higher performance by Employee of his base salary as the obligations of December 31Employee herein, 2008the Company agrees to pay to Employee $729,020.80, or his base salary in effect prior less applicable withholdings for federal, state and local taxes. Such amount, which represents severance and the value of all of Employee’s accrued but unused vacation time (plus interest at the rate of 4.75% per annum on the portion to the Termination Date. Any accrued vacation amount shall also be paid on the Termination Date. Executive agrees September 1, 2006), shall be paid by wire transfers to submit to an account designated in writing by Employee for such purpose in periodic installments as follows: (i) on September 1, 2006 the Company any will pay $262,354.13, less applicable withholdings for federal, state and all expenseslocal taxes, which are business-related and reimbursable (ii) on the first business day of each month thereafter through November 1, 2007 the Company will pay $33,333.33, less applicable withholdings for federal, state and local taxes. In January 2007 the Company will issue to Executive by Employee a form W-2 reflecting the Company, within thirty (30payment of the amounts described in this Paragraph 3(a) days after in calendar year 2006 and in January 2008 the Termination DateCompany will issue to Employee a form W-2 reflecting the payment of the amounts described in this Paragraph 2(a) in calendar year 2007. (b) In consideration Employee’s participation in the Company’s group health insurance coverage shall continue after the Separation Date under the same terms and conditions applicable to such coverage immediately prior to the Separation Date and shall terminate as of November 30, 2007. At that time, Employee shall be entitled to elect to continue to receive such group health insurance coverage, at his own expense, by so electing in accordance with the obligations Consolidated Omnibus Budget Reconciliation Act of Executive herein (including the release in section 3) and subject to Executive’s execution and failure to revoke this Agreement following the Termination Date:1986. (i) The Company shall, on From and after the Termination Separation Date, make Employee shall be entitled to receive his vested benefits as of the Separation Date under the Salaried Employees’ Profit Sharing Plan of the Company and the Salaried Employees’ Retirement Income Plan of the Company (the “Qualified Plans”), in accordance with and subject to the terms and conditions of the Qualified Plans. (ii) From and after the Separation Date, Employee shall be entitled to receive his vested benefits as of the Separation Date under the Supplemental Executive Profit Sharing Plan of the Company, in accordance with and subject to the terms and conditions of such plan and such benefits shall be paid before March 15, 2006. In addition, from and after September 1, 2006, Employee shall be entitled to receive his vested benefits as of the Separation Date under the Supplemental Executive Retirement Plan of the Company (the “SERP,” and together with the Supplemental Executive Profit Sharing Plan of the Company, the “Nonqualified Plans”), in accordance with and subject to the terms and conditions of the SERP. Notwithstanding the foregoing, to the extent that Employee was otherwise entitled to receive any payments under the SERP during the period from the Separation Date through August 31, 2006 (the “Waiting Period”) in accordance with the terms of the SERP, Employee shall receive a lump sum payment to Executivepromptly after September 1, of 2006 in an amount equal to the higher total amount of Executive’s base salary payments that Employee otherwise would have received under the SERP during the Waiting Period in effect as of December 31, 2008, or his base salary as of the Termination Date plus the higher of the targeted annual bonus (as though such targets had been achieved) in effect for 2008 or for the year preceding the year of the Termination Date, multiplied by one (1) plus the product of two (2) times Executive’s years of service as of the Termination Date divided by fifty-two (52). For purposes of such computation, it is agreed that Executive commenced service accordance with the Company in February 1994 and has continued in service since that time. Executive shall not have the right to make contributions to the Company’s 401(k) savings plan from the base salary payments made under this section 2(b)(i)terms thereof. (iid) Executive shall continue In the same manner and to participate in the Company’s welfare benefit plans, including but not limited same extent as immediately prior to medical benefits, dental benefits, life insurancethe Separation Date, and short-term and long-term disability plans, in which he is enrolled or eligible for twenty-four (24) months following to the Termination Date, as if he were still employed maximum extent permitted by the Company, and at the expiration of such twenty-four (24) month period, Executive shall be entitled to COBRA coverage. Notwithstanding the foregoing, in the event that continued participation in welfare benefit plans of the Company would subject Executive to adverse tax consequences under Section 409A of the Internal Revenue Code of 1986, as amendedapplicable law, the Company shall pay to Executive its portion of any premium under such plans for the relevant twenty-four (24) month period in a cash lump sumwill indemnify and hold Employee harmless from and against all third party claims, less applicable withholdingdamages, on the Termination Datefines, penalties, deficiencies, losses and Executive may then elect to continue participation in the Company welfare benefit plans for the relevant twenty-four (24) month period, to the extent permitted by law, by paying the entire premium due under such plans, including both the employer and employee portions of such premium. (iii) All outstanding stock options, and other equity grants expenses (including, without limitation, restricted stockinterest, restricted stock unitscourt costs, reasonable attorneys’ fees and warrantsreasonable experts’ fees) granted with respect to Executive any threatened, pending or completed action, suit, arbitration or other proceeding, whether civil, criminal, administrative, investigative or otherwise, which arises out of or relates to Employee’s performance of his duties and responsibilities as an officer and/or director of the Company (“Third Party Claims”). If a Third Party Claim is made against Employee, the Company will be entitled to participate in the defense thereof and, if it chooses, to assume the defense thereof at its own cost and expense with counsel selected by the Company. If the Company elects to assume the defense of a Third Party Claim: (i) the Company will not be liable to the Employee for any legal expenses subsequently incurred by him in connection with the defense thereof; (ii) Employee shall become 100% vested cooperate in the defense thereof; (iii) the Company shall not agree to any settlement, compromise or discharge of such Third Party Claim without the prior written consent of Employee unless such settlement, compromise or discharge provides solely for monetary relief to be paid by the Company and the full and complete release of Employee is the result thereof; and (iv) Employee shall not admit liability with respect to, or settle, compromise or discharge such Third Party Claim without the Company’s prior written consent. Employee’s right to be exercisable indemnified and otherwise payable held harmless hereunder will not be deemed exclusive of any other rights or remedies to which he may be entitled as a matter of law, or of any other rights of indemnity arising under any policy of insurance carried by Employee, the Company or any other person or entity. (e) The Company will process and promptly pay all reasonable and customary business expenses incurred by Employee through February 28, 2006 and submitted by him for payment not later than March 14, 2006 in accordance with their termsthe Company’s ordinary expense payment procedures. (ivf) All payments Employee acknowledges and agrees that Employee is not entitled to Executive shall and will not be less all amounts required entitled to any compensation or authorized benefits of any kind or description from the Company or as a result of his employment by the Company other than as set forth herein or as described herein in the case of the benefits to be withheld by applicable federal, state, or local law. (v) Notwithstanding anything herein to the contrary, in the event that Executive is determined to be a specified employee in accordance with Section 409A provided under each of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance issued thereunder for purposes of any severance pay payment under this Agreement, such severance payments shall be made or begin, as applicable, on the first payroll date which is more than six (6plans described in Section 2(c) months following the date of separation from service, to the extent required to avoid the adverse tax consequences to Executive under Section 409A of the Internal Revenue Code of 1986, as amendedabove.