Common use of Termination Without Cause or Constructive Termination Clause in Contracts

Termination Without Cause or Constructive Termination. For and in consideration of your covenants set forth in paragraphs 5 through 9 of this Agreement, the Company agrees that if, during the Employment Period, the Company shall terminate your employment without Cause, or should you terminate your employment because of Constructive Termination, then in either of such events, the Company shall pay you as follows: (A) all of the unpaid “Post-Closing Payments” referred to in Section 2.2 (b) of the Purchase Agreement, which shall be deemed to be immediately due and payable in full (to Your Trust); and (B) a series of monthly payments for the months remaining in the Employment Period following such termination until the Scheduled Expiration Date, each such monthly payment to be paid periodically in accordance with the Company’s regular payroll practices (but no less frequently than monthly) and to be equal to one-twelfth (1/12th) of your Annual Base Salary as in effect immediately prior to the termination of the Employment Period; and (C) (1) if such termination occurs prior to December 31, 2007, the greater of (I) the Earnout Payment for the First Calculation Period, the Second Calculation Period, the Third Calculation Period and the Fourth Calculation Period (together, hereinafter referred to as the “Calculation Periods”), or (II) a “Minimum Cash Payment of Seven Hundred Fifty Thousand Dollars ($750,000); (2) if such termination occurs prior to December 31, 2008, but after December 3 1, 2007, the greater of (I) the Earnout Payment for the Second Calculation Period, the Third Calculation Period and the Fourth Calculation Period, or (II) a “Minimum Cash Payment” of Six Hundred Thousand Dollars ($600,000); (3) if such termination occurs prior to December 31, 2009, but after December 31, 2008, the greater of (I) the Earnout Payment for the Third Calculation Period and the Fourth Calculation Period, or (II) a “Minimum Cash Payment” of Four Hundred Fifty Thousand Dollars ($450,000); and (4) if such termination occurs prior to June 30, 2010, but after December 31, 2009, the greater of (I) the Earnout Payment for the Fourth Calculation Period, or (II) a “Minimum Cash Payment” of One Hundred Fifty Thousand Dollars ($150,000). All of the unpaid “Post-Closing Payments” referred to in Section 2.2 (b) of the Purchase Agreement, and the applicable “Minimum Cash Payment” referred to above, shall be due and payable by the Company to you within thirty (30) days from and after the date of the termination without Cause or Constructive Terination; however, once the Earnout Payment, if any, has been finally determined in accordance with Section 2.5 of the Purchase Agreement, if the Earnout Payment would have been greater than the applicable Minimum Cash Payment that was made, then the Company shall pay the difference to you once the Earnout Payment for the Calculation Periods concluding after your termination of employment under this paragraph have been finally determined in accordance with Section 2.5 of the Purchase Agreement. You hereby agree that if the applicable Minimum Cash Payment paid to you is in excess of the Earnout Payment, that such Minimum Cash Payment is in lieu of any Earnout Payment that would have been due to The Mxxxxxx X. Xxxxxxx Irrevocable Delaware Trust under Agreement dated April 23, 2007 (the “Trust”), if earned, for such periods and the Trust hereby waives its rights under the Purchase Agreement to any such Earnout Payment in such event. Notwithstanding the foregoing, the Company shall not be required to make the payment set forth in the foregoing paragraph if you have been adjudicated as being in breach of paragraph 9 herein, provided, further, that since adjudication through litigation takes a substantial amount of time, if the Company makes a claim or claims against you for breach of paragraph 9 of this Agreement, the Company may pay the payment set forth above into escrow pending the adjudication of the claim or claims. The Company shall have no further payment obligations to you under this Agreement, other than for amounts arising from your participation in, or benefits under, any plans or programs in which you participated pursuant to paragraph 3, which amounts shall be payable in accordance with the terms and conditions of such plans and programs.

Termination Without Cause or Constructive Termination. For and in consideration of your covenants set forth in paragraphs 5 through 9 of this Agreement, the Company agrees that if, during the Employment Period, the Company shall terminate your employment without Cause, or should you terminate your employment because of Constructive Termination, then in either of such events, the Company shall pay you as follows: (A) all of the unpaid “Post-Closing Payments” referred to in Section 2.2 (b) of the Purchase Agreement, which shall be deemed to be immediately due and payable in full (to Your Trust); and (B) a series of monthly payments for the months remaining in the Employment Period following such termination until the Scheduled Expiration Date, each such monthly payment to be paid periodically in accordance with the Company’s regular payroll practices (but no less frequently than monthly) and to be equal to one-twelfth (1/12th) of your Annual Base Salary as in effect immediately prior to the termination of the Employment Period; and (C) (1) if such termination occurs prior to December 31, 2007, the greater of (I) the Earnout Payment for the First Calculation Period, the Second Calculation Period, the Third Calculation Period and the Fourth Calculation Period (together, hereinafter referred to as the “Calculation Periods”), or (II) a “Minimum Cash Payment of Seven Hundred Fifty Thousand Dollars ($750,000); (2) if such termination occurs prior to December 31, 2008, but after December 3 131, 2007, the greater of (I) the Earnout Payment for the Second Calculation Period, the Third Calculation Period and the Fourth Fouth Calculation Period, or (II) a “Minimum Cash Payment” of Six Hundred Thousand Dollars ($600,000); (3) if such termination occurs prior to December 31, 2009, but after December 31, 2008, the greater of (I) the Earnout Payment for the Third Calculation Period and the Fourth Calculation Period, or (II) a “Minimum Cash Payment” of Four Hundred Fifty Thousand Dollars ($450,000); and (4) if such termination occurs prior to June 30, 2010, but after December 31, 2009, the greater of (I) the Earnout Payment for the Fourth Calculation Period, or (II) a “Minimum Cash Payment” of One Hundred Fifty Thousand Dollars ($150,000). All of the unpaid “Post-Closing Payments” referred to in Section 2.2 (b) of the Purchase Agreement, and the applicable “Minimum Cash Payment” referred to above, shall be due and payable by the Company to you within thirty (30) days from and after the date of the termination without Cause or Constructive Terination; however, once the Earnout Payment, if any, has been finally determined in accordance with Section 2.5 of the Purchase Agreement, if the Earnout Payment would have been greater than the applicable Minimum Cash Payment that was made, then the Company shall pay the difference to you once the Earnout Payment for the Calculation Periods concluding after your termination of employment under this paragraph have been finally determined in accordance with Section 2.5 of the Purchase Agreement. You hereby agree that if the applicable Minimum Cash Payment paid to you is in excess of the Earnout Payment, that such Minimum Cash Payment is in lieu of any Earnout Payment that would have been due to The Mxxxxxx X. M. Sxxxx Xxxxxxx Irrevocable Delaware Trust under Agreement dated April 23, 2007 (the “Trust”), if earned, for such periods and the Trust hereby waives its rights under the Purchase Agreement to any such Earnout Payment in such event. Notwithstanding the foregoing, the Company shall not be required to make the payment set forth in the foregoing paragraph if you have been adjudicated as being in breach of paragraph 9 herein, provided, further, that since adjudication through litigation takes a substantial amount of time, if the Company makes a claim or claims against you for breach of paragraph 9 of this Agreement, the Company may pay the payment set forth above into escrow pending the adjudication of the claim or claims. The Company shall have no further payment obligations to you under this Agreement, other than for amounts arising from your participation in, or benefits under, any plans or programs in which you participated pursuant to paragraph 3, which amounts shall be payable in accordance with the terms and conditions of such plans and programs.