Termination without Cause or Resignation for Good Reason in Connection with a Change of Control If during the period commencing three (3) months before and ending twelve (12) months after a Change of Control, (1) Executive terminates his employment with the Company (or any Affiliate) for Good Reason or (2) the Company (or any Affiliate) terminates Executive’s employment for other than Cause, Executive becoming Disabled or Executive’s death, then, subject to Section 4, Executive will receive the following severance from the Company:
Termination by the Company Without Cause or by the Executive with Good Reason During the Term, if the Executive’s employment is terminated by the Company without Cause as provided in Section 3(d), or the Executive terminates the Executive’s employment for Good Reason as provided in Section 3(e), then the Company shall pay the Executive the Accrued Benefit. In addition, subject to the Executive signing a separation agreement in substantially the form attached hereto as Exhibit A (the “Separation Agreement and Release”) and the Separation Agreement and Release becoming fully effective, all within the time frame set forth in the Separation Agreement and Release but in no event more than 60 days after the Date of Termination:
(i) the Company shall pay the Executive an amount equal to nine months of the Executive’s Base Salary (the “Severance Amount”). Notwithstanding the foregoing, if the Executive breaches any of the provisions contained in the Restrictive Covenants Agreement, all payments of the Severance Amount shall immediately cease; and
(ii) if the Executive properly elects to receive benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), nine months of COBRA premiums for the Executive and the Executive’s eligible dependents at the Company’s normal rate of contribution for employees for the Executive’s coverage at the level in effect immediately prior to the Date of Termination; provided, however, if the Company determines that it cannot pay such amounts without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), provided that the Executive is enrolled in the Company’s health care programs immediately prior to the Date of Termination, the Company will in lieu thereof provide to the Executive a taxable monthly payment in an amount equal to the portion of the COBRA premiums for the Executive and the Executive’s eligible dependents to continue the Executive’s group health coverage in effect on the Date of Termination at the Company’s normal rate of contribution for employee coverage at the level in effect immediately prior to the Date of Termination for a period of nine months. For the avoidance of doubt, the taxable payments described above may be used for any purpose, including, but not limited to, continuation coverage under COBRA; and
(iii) the amounts payable under Section 4(b)(i) and (ii), to the extent taxable, shall be paid out in substantially equal installments in accordance with the Company’s payroll practice over nine months commencing on the first payroll date following the effective date of the Separation Agreement and Release and, in any case, within 60 days after the Date of Termination; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, the Severance Amount to the extent it qualifies as “non-qualified deferred compensation” within the meaning of Section 409A of the Code, shall begin to be paid no earlier than the first Company payroll date in the second calendar year and, in any case, by the last day of such 60-day period; provided, further, that the initial payment shall include a catch-up payment to cover amounts retroactive to the day immediately following the Date of Termination. Each payment pursuant to this Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2).
Termination by the Company Without Cause or by the Executive for Good Reason (a) Employee shall not receive any of the benefits pursuant to this Section 5.2 unless he executes a general release in favor of the Company, in a form acceptable to the Company and substantially similar to the form attached hereto as Schedule B (the “Release”) within the consideration period specified therein (the “Release Review Period”) and until the Release becomes effective and can no longer be revoked by Employee under its terms. Employee’s ability to receive benefits pursuant to this Section 5.2 is further conditioned upon his: returning all Company property; complying with his post termination obligations under this Agreement and the Proprietary Information, Inventions and Non-Competition Agreement; and complying with the Release including without limitation any non-disparagement and confidentiality provisions contained therein.
(b) In the event that Executive’s employment is terminated pursuant to Section 4.2 by the Company without Cause or by the Executive for Good Reason, the Company shall pay to Executive as severance twelve months of his annual Base Salary then in effect, together with an additional amount calculated by dividing by 365 the number of days employed in the year of termination and multiplying that number by the amount of the Executive’s previous year’s bonus (if any), such amount to be paid in one lump sum on the date the Release becomes effective, subject to standard payroll deductions and withholdings, provided, however, that if the Release Review Period begins in one tax year and ends in a later tax year, the payments under this Section 5.2(b) will be made following the date that the Release is effective that occurs in the later tax year . Additionally, if Executive timely elects and remains eligible for continued coverage under COBRA, the Company, as part of this Agreement, will pay that portion of Executive’s COBRA premiums it was paying prior to the Separation Date for twelve (12) months.
(c) In the event Executive’s employment is terminated pursuant to Section 4.2, and not for Cause, death or Disability, all unvested equity awards shall become fully vested, all unvested stock options shall become fully vested and exercisable and any ISO’s issued to Executive will automatically convert to a non-qualified options on the 91st day following termination, provided it has not been exercised, subject to the terms of the applicable stock plan and option agreement.
Termination by the Company Without Cause or by Executive for Good Reason Except as provided in Section 6(f) below, upon a termination of Executive’s employment by the Company without Cause or by Executive for Good Reason, Executive shall be entitled to receive the Accrued Benefits and, subject to Executive’s execution and non-revocation of the release described in Section 6(g) and Executive’s compliance with Executive’s obligations under Section 8, the following severance payments and benefits (collectively, the “Severance Benefits”):
(i) an amount equal to nine (9) months of Executive’s Base Salary at the rate in effect on the date of termination, payable in substantially equal installments in accordance with the Company’s normal payroll practices over the nine (9) month period following Executive’s termination date, commencing on the first payroll date that occurs on or after the Release Effective Date (as defined below), provided that the initial payment will include a catch-up payment to cover the period between Executive’s termination date and the date of such first payment and the remaining amounts shall be paid over the remainder of such nine (9) month period;
(ii) provided Executive and his eligible dependents timely and properly elect to continue health care coverage under the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), continued participation by Executive and Executive’s eligible dependents in the standard group medical, dental and vision plans of the Company as in effect from time to time, on substantially the same terms and conditions as such benefits are provided to employees during the applicable period, and reimbursement by the Company of the monthly COBRA premium paid by Executive for him and his eligible dependents for nine (9) months or, if earlier, until the date Executive is no longer eligible to receive COBRA continuation coverage; provided, however, in the event the Company determines that such provisions would subject Executive to taxation under Section 105(h) of the Internal Revenue Code of 1986, as amended (the “Code”), or otherwise violate any healthcare law or regulation, then, in lieu of reimbursing Executive, the Company shall pay to Executive an amount equal to the amount Executive would be required to pay for continuation of group health coverage for Executive and his eligible dependents through an election under COBRA for nine (9) months, which amount shall be paid in a lump sum at the same time payments under Section 5(e)(i) commence and is intended to assist Executive with costs of health coverage, which Executive may (but is not required to) obtain through an election to continue health care coverage under COBRA; and
Termination by the Company for Cause or by the Executive without Good Reason The Company may terminate the Executive’s employment pursuant to the terms of this Agreement at any time for Cause (as defined below) by giving the Executive written notice of termination. Such termination shall become effective upon the giving of such notice. Upon any such termination for Cause, or in the event the Executive terminates his employment with the Company without Good Reason (as defined in Section 6(c)), then the Executive shall have no right to compensation, or reimbursement under Section 4, or to participate in any Executive benefit programs under Section 5, except as may otherwise be provided for by law, for any period subsequent to the effective date of termination. For purposes of this Agreement, “Cause” shall mean: (i) the Executive is convicted of, or pleads guilty or nolo contendere to, a felony related to the business of the Company; (ii) the Executive, in carrying out his duties hereunder, has acted with gross negligence or intentional misconduct resulting, in any case, in material harm to the Company; (iii) the Executive misappropriates Company funds or otherwise defrauds the Company including a material amount of money or property; (iv) the Executive breaches his fiduciary duty to the Company resulting in material profit to him, directly or indirectly; (v) the Executive materially breaches any agreement with the Company and fails to cure such breach within 10 days of receipt of notice, unless the act is incapable of being cured; (vi) the Executive breaches any provision of Section 8 or Section 9; (vii) the Executive becomes subject to a preliminary or permanent injunction issued by a United States District Court enjoining the Executive from violating any securities law administered or regulated by the SEC; (viii) the Executive becomes subject to a cease and desist order or other order issued by the SEC after an opportunity for a hearing; (ix) the Executive refuses to carry out a resolution adopted by the Company’s Board at a meeting in which the Executive was offered a reasonable opportunity to argue that the resolution should not be adopted; or (x) the Executive abuses alcohol or drugs in a manner that interferes with the successful performance of his duties.
Termination for Cause or Resignation without Good Reason If, during the Term of this Agreement, Executive’s employment is terminated by the Company for Cause, or Executive resigns his employment hereunder without Good Reason, the Company shall pay Executive the Termination Amounts, less standard deductions and withholdings. The Company shall thereafter have no further obligations to Executive under this Agreement, except as otherwise provided by law.
Voluntary Termination by the Executive Without Good Reason If the Executive terminates employment without Good Reason, the Executive shall receive the Base Salary and expense reimbursement to which the Executive is entitled through the date on which termination becomes effective.
Termination by Company without Cause or by Executive for Good Reason If Executive's employment is terminated by the Company without Cause or by Executive for Good Reason:
(i) the Company shall pay to Executive (A) his Base Salary and accrued vacation pay through the Date of Termination, as soon as practicable following the Date of Termination, and (B) a payment equal to two times Executive's current base scheduled annual salary and two times the average total additional compensation (i.e., bonus, pension, 401(k) Company contributions, medical benefits and car allowance) for the two (2) preceding fiscal years of the Company ending prior to termination within seven (7) calendar days following the Date of Termination; provided, however, if the Executive has previously given a notice not to extend the Employment Period pursuant to Section 2, the payment referred to in this subsection (i) shall not be made;
(ii) the Company shall maintain in full force and effect, for the continued benefit of Executive, his spouse and his dependents for a period of three (3) years following the Date of Termination the medical, hospitalization, dental, disability and life insurance programs in which Executive, his spouse and his dependents were participating immediately prior to the Date of Termination at the level in effect and upon substantially the same terms and conditions (including without limitation contributions required by Executive for such benefits) as existed immediately prior to the Date of Termination; provided, that if Executive, his spouse or his dependents cannot continue to participate in the Company programs providing such benefits, the Company shall arrange to provide Executive, his spouse and his dependents with the economic equivalent of such benefits which they otherwise would have been entitled to receive under such plans and programs ("Continued Benefits"), provided, that such Continued Benefits shall terminate on the date or dates Executive receives substantially equivalent coverage and benefits, without waiting period or pre-existing condition limitations, under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-by-coverage, or benefit-by-benefit, basis); and
(iii) the Company shall reimburse Executive pursuant to Section 5(d) for reasonable expenses incurred, but not paid prior to such termination of employment;
(iv) Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive in accordance with the terms and provisions of any agreements, plans or programs of the Company;
(v) all stock options and other pension or employment benefits granted to Executive prior to the Date of Termination shall fully vest as of the Date of Termination (inclusive of any granted to Executive prior to the Employment Period);
(vi) the Company shall forgive and cancel all loans made by the Company or any Affiliate to Executive, if any, and shall take all actions and execute all documents necessary to evidence the forgiveness and cancellation of such loans; and
(vii) the Company shall eliminate any and all restrictions on Executive's ability either to engage in any activities, directly or indirectly, in competition with the Company (including, without limitation, the restrictions set forth in Section 10(c) of this Agreement but not the restrictions set forth in Sections 10(a) and (b)), or to make any investment in competition with the Company, and shall execute all documents necessary or reasonably requested by Executive to reflect such elimination of restrictions. The foregoing notwithstanding, the total of the severance payments payable under this Section 8(a) shall be reduced to the extent the payment of such amounts would cause Executive's total termination benefits (as determined by Executive's tax advisor) to constitute an "excess" parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and by reason of such excess parachute payment Executive would be subject to an excise tax under Section 4999(a) of the Code, but only if Executive determines that the after-tax value of the termination benefits calculated with the foregoing restriction exceed those calculated without the foregoing restriction.
Termination Without Cause; Termination for Good Reason Subject to Section 6(b) below, upon termination of the Employee’s employment with the Company by the Company without Cause (as defined in Section 5(f) below) or by the Employee for Good Reason (as defined in Section 5(f) below), other than as a result of death or Disability, the Company shall pay to or provide the Employee the following: (1) any unpaid base salary the Employee has earned through the date of termination, (2) any unpaid annual bonus that the Employee has earned with respect to a year ending prior to such termination, (3) 12 months of the Employee’s then current base salary paid on the Company’s normal payroll dates, (4) the pro-rated portion (based on the number of days in the year completed through the date of termination) of the Employee’s target bonus for the year of termination (paid on the normal date for the payment of the bonus), such amount to be paid only if the Employee has met his pro-rated objective performance targets through the date of termination, (5) an amount equal to the Employee’s target bonus for the year of termination, (6) the costs of COBRA continuation coverage for the Employee and his dependents from the date the Employee’s employment terminates through the earlier of (A) the first anniversary of such termination and (B) the date on which the Employee becomes entitled to health coverage of a similar type from another employer, plus/less (7) any positive/negative accrued vacation days. In addition to the foregoing, upon a termination of the Employee’s employment described in this Section 5(b), any stock options, stock appreciation rights, performance shares, restricted stock, share rights and all other similar types of equity incentives held by the Employee immediately prior to the termination of the Employee’s employment that, but for the termination of the Employee’s employment, would have become vested and, if applicable, exercisable by the first anniversary of the date of his termination of employment, will become immediately vested and, if applicable, exercisable. No amount shall be payable and no benefits shall be provided pursuant to this Section 5(b) until the Employee has executed a release and waiver agreement (substantially in the form attached hereto as Schedule C) releasing and waiving any claims against the Company and in which the Company releases and waives claims against the Employee and if the Employee is serving as a Director of the Company a valid and effective resignation from the Board unless the Employee beneficially owns, directly or indirectly, 5% or more of the Company’s Common Stock.
Termination Without Cause or Resignation for Good Reason If the Executive’s employment with the Company is terminated by the Company (other than for Cause, Disability or death) or the Executive resigns for Good Reason during the Term, then the Executive shall be entitled to the following benefits, subject to compliance, where applicable, with the requirements in Section 4.4 below regarding release of claims, the Company shall:
(a) pay to the Executive in a lump sum (i) any unpaid base salary of the Executive, (ii) any accrued but unused and unpaid vacation pay of the Executive, (iii) any earned and unpaid bonuses of the Executive, and (iv) the amount of any unpaid compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) (provided that this clause (iv) shall not cause accelerated payment of amounts subject to Section 409A (as defined below) if not provided for under the terms by which such amounts were or are deferred), in each case of clauses (i) through (iv) through the Date of Termination (collectively, the “Accrued Obligations”);
(b) continue to provide to the Executive in accordance with the Company’s ordinary payroll practices, the Executive’s base salary for a period of time after the Date of Termination equal to 12 months (the “Severance Period”), with payments beginning as provided in 4.4 below;
(c) if and while the Executive and his or her family qualifies for and elects to participate in continuation health coverage under Section 4980B of the Code (“COBRA”), the Company will continue to pay the share of the premium for such coverage that it pays for active and similarly-situated employees who receive the same type of coverage until the earlier of (i) the end of the Severance Period or (ii) the date the Executive’s COBRA continuation coverage expires, unless the Company’s providing payments for COBRA will violate the nondiscrimination requirements of applicable law, in which case this benefit will not apply; and
(d) to the extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company (collectively, the “Other Benefits”).
