Common use of Termination of Employment Upon Death or Disability Clause in Contracts

Termination of Employment Upon Death or Disability. In the event of termination of Executive's employment as a result of either (i) Executive's death or Disability (as hereinafter defined), the Company shall pay to Executive, his estate or his personal representative (A) the unpaid salary through the end of the Employment Period remaining (assuming no such termination occurred) and (B) a pro-rata portion, based upon the number of days in the period beginning with January 1 of the calendar year in which such termination occurred and ending with the date the Employment Period ends (assuming such termination did not occur), of the average annual amount of incentive compensation payments paid to Executive during each previous year of Executive's employment hereunder (the "Pro-Rata Portion of Incentive Compensation"). The aforesaid amount shall be payable, at the option of Executive, his estate or his personal representative, either (i) in full immediately upon such termination or (ii) monthly over the remainder of the Employment Period. In addition, Executive shall be entitled (i) at the option of Executive, his estate or his personal representative, within one (1) year of the date of such termination, to exercise any options which have vested (including, without limitation, by acceleration in accordance with the terms of the applicable option grant agreement or plan) and are exercisable in accordance with the terms of the applicable option grant agreement or plan or to require the Company (upon written notice delivered within one hundred eighty (180) days following the date of Executive's termination) to repurchase all or any portion of Executive's vested options to purchase shares of Common Stock at a price equal to the difference between the Repurchase Fair Market Value (as hereinafter defined) of the shares of Common Stock for which the options to be repurchased are exercisable and the exercise price of such option as of the date of Executive's termination of employment, (ii) to retain all Restricted Shares awarded to Executive pursuant to this Agreement and the Restricted Share Agreement whether or not such Restricted Shares had previously vested as of the date of termination. In the event any Restricted Shares have not vested as of the date of termination, such Restricted Shares shall immediately vest and Executive, his estate or his personal representative shall receive a cash payment from the Company on the date of termination in an amount equal to forty percent (40%) of the Fair Market Value (determined as of the date of termination) of the Restricted Shares that vest on the date of termination (the "Termination Restricted Share Tax Gross-Up Payment"), (iii) to retain all shares of Common Stock purchased by Executive with the proceeds of the Stock Acquisition Loan without regard to whether or not the Stock Acquisition Loan has been forgiven or repaid. In the event there is an outstanding balance on the Stock Acquisition Loan, such outstanding balance including interest accrued thereon shall on the first day of the calendar month next succeeding Executive's Disability or death be forgiven (and any shares pledged under the Stock Pledge Agreement shall be released to Executive, his estate or his personal representative) and Executive, his estate or his personal representative shall receive a cash payment from the Company on that date in an amount equal to forty percent (40%) of the outstanding balance of the Stock Acquisition Loan and interest accrued thereon that is forgiven on the date of termination (the "Termination Acquisition Loan Tax Gross-Up Payment"). Except for any rights which Executive may have to unpaid salary amounts through the end of the Employment Period, the Pro-Rata Portion of Incentive Compensation, vested options, Restricted Shares (and the full vesting thereof) and the Termination Restricted Share Tax Gross-Up Payment, and shares of Common Stock purchased with the proceeds of the Stock Acquisition Loan (and the forgiveness of the outstanding balance of the Stock Acquisition Loan inclusive of interest accrued thereon) and the Termination Acquisition Loan Tax Gross-Up Payment, all as set forth above, the Company shall have no further obligations hereunder following such termination.