Common use of Termination Apart from Change of Control Clause in Contracts

Termination Apart from Change of Control. If Executive’s employment is terminated (A) by the Company other than for Cause or Disability or (B) by Executive for Good Reason, and such termination is not a Payment Termination (as defined in that certain Third Amended and Restated Change of Control Terms and Conditions dated as of even date herewith, as may be amended from time to time, a copy of which is attached hereto as Exhibit B and incorporated herein by this reference (the “Change of Control Agreement”)), and provided further that the termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Code and the regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h) (a “Separation from Service”), then, subject to Section 5(d), in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company or by law, Executive shall be entitled to receive the benefits provided below: (A) the Company shall pay to Executive his fully earned but unpaid base salary, when due, through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time such payments are due (including, without limitation, all accrued and unused vacation); (B) Executive shall be entitled to receive an amount equal to two (2) times Executive’s annual base salary (without giving effect to any reductions thereto), payable in three (3) equal installments as follows: (1) one-third (1/3) shall be paid on the date sixty (60) days after the Date of Termination, (2) one-third (1/3) shall be paid on the date that is six (6) months following the Date of Termination, and (3) one-third (1/3) shall be paid on the date that is twelve (12) months following the Date of Termination; provided, however, that any amount described in this Section 5(c)(i)(B) that would be unpaid at the end of the calendar year in which the first installment of this Section 5(c)(i)(B) is first payable shall be paid in a cash lump sum no later than December 31 of such calendar year. (C) for the period beginning on the Date of Termination and ending on the date which is the earlier of (1) the date Executive obtains substantially similar coverage due to subsequent employment or (2) the date which is twenty-four (24) full months following the Date of Termination, the Company shall continue in effect at Company cost each health and welfare coverage of Executive and/or his covered dependents on the same terms and conditions in effect prior to Executive’s Date of Termination; (1) except for the performance-based restricted stock units awarded on February 17, 2009, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (including, without limitation, any Stock Awards held by Executive that contain provisions making the vesting of, or lapse of restrictions with respect to, such awards contingent upon the attainment of one or more performance goals) shall be automatically accelerated on the Date of Termination as to one hundred percent (100%) of such unvested Stock Awards and (2) Executive shall be permitted to exercise each of his outstanding vested Stock Awards as of the Date of Termination (including any Stock Awards required to be vested in connection with Executive’s termination of employment) for the remainder of the original term of such Stock Award. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; (E) with respect to any Restricted Stock provided in Section 4(f)(i) or any RSUs provided in Section 4(f)(ii) that has not been awarded to Executive as of the Date of Termination, Executive shall be entitled to a cash payment in an amount calculated by multiplying the number of shares underlying the Restricted Stock and/or RSUs that have not been granted by the closing trading price of the Company’s common stock on the Date of Termination of such Restricted Stock and/or RSUs that have not been granted, which such cash payment shall be payable on sixtieth (60th) day following the Date of Termination; and (F) Executive shall be entitled to receive an amount equal to two (2) times Executive’s target annual bonus for the fiscal year in which Executive’s employment terminates payable in a single lump sum on the 60th day following Executive’s Date of Termination and, upon attainment of the performance criteria with respect to Executive’s annual bonus for the fiscal year in which Executive’s employment terminates, a pro rated portion of such annual bonus based upon the actual number of days worked by Executive during such fiscal year, payable in a single lump sum when bonuses for such fiscal year are paid to the Company’s executives generally (but in no event later than two and one-half months following the end of such fiscal year).

Termination Apart from Change of Control. If Executive’s employment is terminated (A) by the Company other than for Cause or Disability or (B) by Executive for Good Reason, and such termination is not a Payment Termination (as defined in that certain Third Second Amended and Restated Change of Control Terms and Conditions dated as of even date herewith, as may be amended from time to time, a copy of which is attached hereto as Exhibit B A and incorporated herein by this reference (the “Change of Control Agreement”)), and provided further that the termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Code and the regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h) (a “Separation from Service”), then, subject to Section 5(d), in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company or by law, Executive shall be entitled to receive the benefits provided below: (A) the Company shall pay to Executive his fully earned but unpaid base salary, when due, through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time such payments are due (including, without limitation, all accrued and unused vacation); (B) Executive shall be entitled to receive an amount equal to two (2) 1.5 times Executive’s annual base salary (without giving effect to any reductions thereto), payable in three (3) equal installments as follows: (1) one-third (1/3) shall be paid on the date sixty (60) days after the Date of Termination, (2) one-third (1/3) shall be paid on the date that is six (6) months following the Date of Termination, and (3) one-third (1/3) shall be paid on the date that is twelve (12) months following the Date of Termination; provided, however, that any amount described in this Section 5(c)(i)(B) that would be unpaid at the end of the calendar year in which the first installment of this Section 5(c)(i)(B) is first payable shall be paid in a cash lump sum no later than December 31 of such calendar year. (C) for the period beginning on the Date of Termination and ending on the date which is the earlier of (1) the date Executive obtains substantially similar coverage due to subsequent employment or (2) the date which is twenty-four eighteen (2418) full months following the Date of Termination, the Company shall continue in effect at Company cost each health and welfare coverage of Executive and/or his covered dependents on the same terms and conditions in effect prior to Executive’s Date of Termination; (1) except for the performance-based restricted stock units awarded on February 17, 2009, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (including, without limitation, any Stock Awards held by Executive that contain provisions making the vesting of, or lapse of restrictions with respect to, such awards contingent upon the attainment of one or more performance goals) shall be automatically accelerated on the Date of Termination as to one hundred percent (100%) of such unvested Stock Awards and (2) Executive shall be permitted to exercise each of his outstanding vested Stock Awards as of the Date of Termination (including any Stock Awards required to be vested in connection with Executive’s termination of employment) for the remainder of the original term of such Stock Award. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award;; and (E) with respect to any Restricted Stock provided in Section 4(f)(i) or any RSUs provided in Section 4(f)(ii) that has not been awarded to Executive as of the Date of Termination, Executive shall be entitled to a cash payment in an amount calculated by multiplying the number of shares underlying the Restricted Stock and/or RSUs that have not been granted by the closing trading price of the Company’s common stock on the Date of Termination of such Restricted Stock and/or RSUs that have not been granted, which such cash payment shall be payable on sixtieth (60th) day following the Date of Termination; and (F) Executive shall be entitled to receive an amount equal to two (2) times Executive’s target annual bonus for the fiscal year in which Executive’s employment terminates payable in a single lump sum on the 60th day following Executive’s Date of Termination and, upon Upon attainment of the performance criteria with respect to Executive’s annual bonus for the fiscal year in which Executive’s employment terminates, a pro pro-rated portion of such annual bonus based upon the actual number of days worked by Executive during such fiscal year, payable in a single lump sum when bonuses for such fiscal year are paid to the Company’s executives generally (but in no event later than two and one-half months following the end of such fiscal year).

Termination Apart from Change of Control. If Executive’s employment is terminated (A) by the Company other than for Cause or Disability or (B) by Executive for Good Reason, and such termination is not a Payment Termination (as defined in that certain Third Amended and Restated Change of Control Terms and Conditions dated as of even date herewith, as may be amended from time to time, a copy of which is attached hereto as Exhibit B A and incorporated herein by this reference (the “Change of Control Agreement”)), and provided further that the termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Code and the regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h) (a “Separation from Service”), then, subject to Section 5(d5(e), in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company or by law, Executive shall be entitled to receive the benefits provided below: (A) the Company shall pay to Executive his fully earned but unpaid base salary, when due, through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time such payments are due (including, without limitation, all accrued and unused vacation); (B) Executive shall be entitled to receive an amount equal to two (2) 1.5 times Executive’s annual base salary (without giving effect to any reductions thereto), payable in three (3) equal installments as follows: (1) one-third (1/3) shall be paid on within ten (10) days of the date sixty (60the condition set forth in Section 5(d) days after the Date of Terminationhas been satisfied, (2) one-third (1/3) shall be paid on the date that is six (6) months following the Date of Termination, and (3) one-third (1/3) shall be paid on the date that is twelve (12) months following the Date of Termination; provided, however, that any amount described in this Section 5(c)(i)(B) that would be is unpaid at as of the date that is the later of 2.5 months after the end of the calendar year in which Executive’s Date of Termination occurs or 2.5 months after the first installment end of this Section 5(c)(i)(B) is first payable the Company’s fiscal year in which Executive’s Date of Termination occurs shall be paid in cash in a cash lump sum no later than December 31 of such calendar yeardate. (C) for the period beginning on the Date of Termination and ending on the date which is the earlier of (1) the date Executive obtains substantially similar coverage due to subsequent employment or (2) the date which is twenty-four eighteen (2418) full months following the Date of Termination, the Company shall continue in effect at Company cost each health and welfare coverage of Executive and/or his covered dependents on the same terms and conditions in effect prior to Executive’s Date of Termination; (1) except for the performance-based restricted stock units awarded on February 17, 2009, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (including, without limitation, any Stock Awards held by Executive that contain provisions making the vesting of, or lapse of restrictions with respect to, such awards contingent upon the attainment of one or more performance goals) shall be automatically accelerated on the Date of Termination as to one hundred percent (100%) the number of such unvested Stock Awards that would vest over the twelve (12) month period following the Date of Termination had Executive remained continuously employed by the Company during such period (treating Executive’s Restricted Stock for purposes of the balance of the 12-month period occurring after the next regular vesting date as if it were subject to ratable vesting over the forty-eight (48) month period commencing on the first monthly anniversary of the Effective Date), and (2) Executive shall be permitted to exercise each of his outstanding vested Stock Awards as of the Date of Termination (including any Stock Awards required to be vested in connection with Executive’s termination of employment) for the remainder of the original term of such Stock Award. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award;; and (E) with respect to any Restricted Stock provided in Section 4(f)(i) or any RSUs provided in Section 4(f)(ii) that has not been awarded to Executive as of the Date of Termination, Executive shall be entitled to a cash payment in an amount calculated by multiplying the number of shares underlying the Restricted Stock and/or RSUs that have not been granted by the closing trading price of the Company’s common stock on the Date of Termination of such Restricted Stock and/or RSUs that have not been granted, which such cash payment shall be payable on sixtieth (60th) day following the Date of Termination; and (F) Executive shall be entitled to receive an amount equal to two (2) times Executive’s target annual bonus for the fiscal year in which Executive’s employment terminates payable in a single lump sum on the 60th day following Executive’s Date of Termination and, upon Upon attainment of the performance criteria with respect to Executive’s annual bonus for the fiscal year in which Executive’s employment terminates, a pro pro-rated portion of such annual bonus based upon the actual number of days worked by Executive during such fiscal year, payable in a single lump sum when bonuses for such fiscal year are paid to the Company’s executives generally (but in no event later than two and one-half months following the end of such fiscal year)generally.

Termination Apart from Change of Control. If Executive’s employment is terminated (A) by the Company other than for Cause or Disability or (B) by Executive for Good Reason, and provided that (1) Notice of Termination without Cause or for Good Reason is provided by the later of January 31, 2017 or sixty (60) days after the Company appoints someone other than Executive as non-Interim CEO of the Company, (2) such termination of employment is not a Payment Termination (as defined in that certain Third Amended and Restated Change of Control Terms and Conditions dated as of even date herewith, as may be amended from time to time, a copy of which is attached hereto as Exhibit B and incorporated herein by this reference (the “Change of Control Agreement”)), ) and provided further that (3) the termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Code and the regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h) (a “Separation from Service”), then, subject to Section 5(d), in lieu of any severance benefits to which Executive may otherwise be entitled under Section 5(c)(ii) or any severance plan or program of the Company or by law, Executive shall be entitled to receive the benefits provided belowbelow thirty (30) days following the Termination Date: (A) In the event of Executive’s resignation for Good Reason, the Company shall pay to Executive his fully earned but unpaid base salaryBase Salary and Supplemental Cash Payment, when due, through the Termination Date of Termination at the rate in effect at the time Notice of Termination for Good Reason is given, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time such payments are due (including, without limitation, all accrued and unused vacationPTO), but in no event shall Executive receive the payments provided for in this Section 5(c)(i)(A) following termination of Executive’s employment by the Company without Cause; (B) Executive shall be entitled to receive an amount equal to two (2) times Executive’s annual base salary Base Salary (without giving effect to any reductions theretothereto or to the Supplemental Cash Payment), payable in three one lump sum payment within thirty (3) equal installments as follows: (1) one-third (1/3) shall be paid on the date sixty (6030) days after the Date of Termination, (2) one-third (1/3) shall be paid on the date that is six (6) months following the Date of Termination, and (3) one-third (1/3) shall be paid on the date that is twelve (12) months following the Date of Termination; provided, however, that any amount described in this Section 5(c)(i)(B) that would be unpaid at the end of the calendar year in which the first installment of this Section 5(c)(i)(B) is first payable shall be paid in a cash lump sum no later than December 31 of such calendar year.Termination Date; (C) for at the period beginning on Company’s election, the Date of Termination and ending on the date which is the earlier of Company will either (1) the date Executive obtains substantially similar coverage due to subsequent employment or (2) the date which is twenty-four (24) full months following the Date of Termination, the Company shall continue in effect at the Company cost each health and welfare coverage of Executive and/or his covered dependents under the Company’s health and welfare plans on the same terms and conditions in effect prior to Executive’s Termination Date for eighteen (18) full months following the Termination Date or, (2) provide Executive the equivalent of Termination;such coverage in the form of a lump sum COBRA payout; and (D) (1) except the Stock Award provided for the performance-based restricted stock units awarded on February 17, 2009, the vesting and/or exercisability in Section 4(b)(ii) of each of Executive’s outstanding Stock Awards (including, without limitation, any Stock Awards held by Executive that contain provisions making the vesting of, or lapse of restrictions with respect to, such awards contingent upon the attainment of one or more performance goals) this Agreement shall be automatically accelerated and fully vested on the Termination Date of Termination as to one hundred percent (100%) of such unvested Stock Awards and (2) Executive vesting of Executive’s other unvested, time-based Restricted Stock Awards and Restricted Stock Units shall be permitted to exercise each accelerated by eighteen (18) months upon the Termination Date. For the avoidance of his outstanding vested Stock Awards as of the Date of Termination (including any Stock Awards required to be vested in connection with Executive’s termination of employment) for the remainder of the original term of such Stock Award. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; (E) with respect to any Restricted Stock provided in Section 4(f)(i) or any RSUs provided in Section 4(f)(ii) that has not been awarded to Executive as of the Date of Terminationdoubt, Executive shall be entitled to a cash payment in an amount calculated by multiplying the number of shares underlying the Restricted Stock and/or RSUs that have not been granted by the closing trading price of the Company’s common stock on the Date appointment of Termination someone other than Executive as Interim or non-Interim CEO shall not, alone, constitute a termination of such Restricted Stock and/or RSUs that have not been granted, which such cash payment shall be payable on sixtieth (60th) day following the Date of Termination; and (F) Executive shall be entitled to receive an amount equal to two (2) times Executive’s target annual bonus for the fiscal year in which Executive’s employment terminates payable in a single lump sum on the 60th day following Executive’s Date of Termination and, upon attainment of the performance criteria with respect to Executive’s annual bonus for the fiscal year in which Executive’s employment terminates, a pro rated portion of such annual bonus based upon the actual number of days worked by Executive during such fiscal year, payable in a single lump sum when bonuses for such fiscal year are paid to the Company’s executives generally (but in no event later than two and one-half months following the end of such fiscal year)without Cause.

Termination Apart from Change of Control. If Executive’s employment is terminated (A) by the Company other than for Cause or Disability or (B) by Executive for Good Reason, and such termination is not a Payment Termination (as defined in that certain Third Second Amended and Restated Change of Control Terms and Conditions dated effective as of even date herewithSeptember 16, 2008, as may be amended from time to time, a copy of which is attached hereto as Exhibit B A and incorporated herein by this reference (the “Change of Control Agreement”)), and provided further that the termination of employment constitutes a “separation from service” within the meaning of Section 409A of the Code and the regulations promulgated thereunder, including Treasury Regulation Section 1.409A-1(h) (a “Separation from Service”), then, subject to Section 5(d), in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company or by law, Executive shall be entitled to receive the benefits provided below: (A) the Company shall pay to Executive his fully earned but unpaid base salary, when due, through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time such payments are due (including, without limitation, all accrued and unused vacation); (B) Executive shall be entitled to receive an amount equal to two (2) times Executive’s annual base salary (without giving effect to any reductions thereto), payable in three (3) equal installments as follows: (1) one-third (1/3) shall be paid on the date sixty (60) days after the Date of Termination, (2) one-third (1/3) shall be paid on the date that is six (6) months following the Date of Termination, and (3) one-third (1/3) shall be paid on the date that is twelve (12) months following the Date of Termination; provided, however, that any amount described in this Section 5(c)(i)(B) that would be unpaid at the end of the calendar year in which the first installment of this Section 5(c)(i)(B) is first payable shall be paid in a cash lump sum no later than December 31 of such calendar year. (C) for the period beginning on the Date of Termination and ending on the date which is the earlier of (1) the date Executive obtains substantially similar coverage due to subsequent employment or (2) the date which is twenty-four (24) full months following the Date of Termination, the Company shall continue in effect at Company cost each health and welfare coverage of Executive and/or his covered dependents on the same terms and conditions in effect prior to Executive’s Date of Termination; (1) except for the performancePerformance-based restricted stock units awarded on February 17, 2009Vesting RSUs, the vesting and/or exercisability of each of Executive’s outstanding Stock Awards (including, without limitation, any Stock Awards held by Executive that contain provisions making the vesting of, or lapse of restrictions with respect to, such awards contingent upon the attainment of one or more performance goals) shall be automatically accelerated on the Date of Termination as to one hundred percent (100%) of such unvested Stock Awards and (2) Executive shall be permitted to exercise each of his outstanding vested Stock Awards as of the Date of Termination (including any Stock Awards required to be vested in connection with Executive’s termination of employment) for the remainder of the original term of such Stock Award. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; (E) with respect to any Restricted Stock provided in Section 4(f)(i) or any RSUs provided in Section 4(f)(ii) that has not been awarded to Executive as of the Date of Termination, Executive shall be entitled to a cash payment in an amount calculated by multiplying the number of shares underlying the Restricted Stock and/or RSUs that have not been granted by the closing trading price of the Company’s common stock on the Date of Termination of such Restricted Stock and/or RSUs that have not been granted, which such cash payment shall be payable on sixtieth (60th) day following the Date of Termination; and (FE) Executive shall be entitled to receive an amount equal to two (2) times Executive’s target annual bonus for the fiscal year in which Executive’s employment terminates payable in a single lump sum on the 60th day following Executive’s Date of Termination and, upon attainment of the performance criteria with respect to Executive’s annual bonus for the fiscal year in which Executive’s employment terminates, a pro rated portion of such annual bonus based upon the actual number of days worked by Executive during such fiscal year, payable in a single lump sum when bonuses for such fiscal year are paid to the Company’s executives generally (but in no event later than two and one-half months following the end of such fiscal year).