Exercise Period Upon Death or Disability If the Participant dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or she is an Eligible Participant and the Company has not terminated such relationship for “cause” as specified in paragraph (e) below, this option shall be exercisable, within the period of one year following the date of death or disability of the Participant, by the Participant (or in the case of death by an authorized transferee), provided that this option shall be exercisable only to the extent that this option was exercisable by the Participant on the date of his or her death or disability, and further provided that this option shall not be exercisable after the Final Exercise Date.
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 of Employment Due to Death or Disability If your employment with the Company terminates due to death or Disability, in each case, prior to the Vesting Date, your Adjusted PSUs will vest and convert into Shares on the Adjustment Date (even though you are not employed by the Company on the Vesting Date). Upon a termination of employment due to death, the Adjusted PSUs shall be delivered in accordance with Section 10.
Termination for Cause; Resignation Without Good Reason; Death or Disability If you resign without Good Reason, or the Company terminates your employment for Cause, or upon your death or disability, then all payments of compensation by the Company to you hereunder will terminate immediately (except as to amounts already earned), and you will not be entitled to any Severance Benefits.
Involuntary Termination Without Cause In the event of the Participant’s involuntary Termination by the Company without Cause, the vested portion of the Option shall remain exercisable until the earlier of (i) ninety (90) days from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3(d) hereof.
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 of Employment Following a Change in Control Subject to Section 11(a) hereunder, the Executive shall be entitled to the Change in Control Severance Benefits (as defined in Section 4(c) below) set forth in this Section 4, in lieu of the severance benefits the Executive is entitled to under Section 3 of this Agreement, if there has been a Change in Control and the Executive has incurred a Termination of Employment. The severance benefit provided under this Section 4 is in lieu of cash severance payments offered under the Company's documented severance policy, if any.
(a) For purposes of Section 4 of the Agreement, "Termination of Employment" shall be defined as:
(i) The Executive's involuntary termination by the Company for any reason other than death, Disability or Cause; or
(ii) The Executive's termination for "Good Reason," defined as the occurrence of any of the following events without the Executive's written consent, if the Executive terminates employment within one (1) year following the occurrence of such event:
(A) Any reassignment of the Executive to substantial duties materially inconsistent with the Executive's position, duties, responsibilities and status with the Company immediately prior to the Change in Control or a substantial diminution in the Executive's position, duties, responsibilities or status with the Company from his position, duties, responsibilities or status with the Company immediately prior to the Change in Control; provided that the fact that the Company is no longer a publicly traded company or the Executive no longer has duties and responsibilities associated exclusively with a publicly traded company, such as Securities and Exchange Commission or stock exchange reporting responsibilities or investor or analyst relations responsibilities, shall not be deemed to be a reassignment of the Executive to substantial duties materially inconsistent with the Executive's position, duties, responsibilities and status with the Company immediately prior to the Change in Control or a substantial diminution in the Executive's position, duties, responsibilities or status with the Company from his position, duties, responsibilities or status with the Company immediately prior to the Change in Control;
(B) Any reduction in the Executive's base salary or targeted incentive bonus or commissions in effect immediately prior to the Change in Control, or failure by the Company to continue any bonus, stock or other incentive plans in effect immediately prior to the Change in Control (without the implementation of comparable successor plans that provide comparable award opportunities/benefits), or any removal of the Executive from participation in such aforementioned plans;
(C) The discontinuance or reduction in benefits to the Executive under any qualified or nonqualified retirement or welfare plan maintained by the Company immediately prior to the Change in Control (without the implementation of comparable successor plans that provide comparable benefits), or the discontinuance of any fringe benefits or other perquisites that the Executive received immediately prior to the Change in Control (without the implementation of comparable successor plans that provide comparable benefits);
(D) Required relocation of the Executive's principal place of employment more than 50 miles from the Executive's place of employment prior to the Change in Control; or
(E) The Company's breach of any provision in this Agreement, provided that the Company has not cured such breach within 10 days following written notice by the Executive to the Company of such breach.
(b) The Executive who believes the Executive is entitled to a Termination of Employment for Good Reason, as defined in Section 4 above, may apply in writing to the Company for confirmation of such entitlement prior to the Executive's actual separation from employment, by following the claims procedure set forth in Section 15 hereof. The submission of such a request by the Executive shall not constitute "Cause" for the Company to terminate the Executive as defined under Section 2(a) hereof. If the Executive's request for a Good Reason Termination of Employment is denied under both the request and appeal procedures set forth in paragraphs (b) and (c) of Section 15 hereof, then the parties shall use their best efforts to resolve the claim within 90 days after the claim is submitted to arbitration pursuant to Section 15(d).
(c) Upon satisfaction of the requirements set forth in Sections 4 or 11(a) hereof and with respect to any one or more Changes in Control that may occur during the term of this Agreement, upon the Executive's execution of a release (in the form attached hereto as Exhibit A), the Executive shall be entitled to (the "Change in Control Severance Benefits"):
(i) A cash severance benefit equal to one times the Executive's current annual base salary, as in effect at the time of the Change in Control;
(ii) A prorated portion of the Executive's target bonus for the year of termination, based on the number of days worked in the year of termination;
(iii) Subject to Section 6, continuation of Company-provided health (including vision and dental, if provided by the Company immediately prior to the Change in Control) and welfare benefits (including executive life insurance coverage, if provided by the Company to the Executive immediately prior to the Change in Control) for one year, on the terms (or comparable terms) provided by the Company to the Executive immediately prior to the Change in Control. Health benefits shall be provided through continued coverage under the Company's group health plan, if allowed under the terms of such plan, or by the reimbursement of COBRA continuation coverage premiums paid by the Executive, as determined by the Company; provided, however, if the health plan is self-insured by the Company, then the determination shall be made by the Executive. Any continuation of group health plan coverage under this paragraph shall run concurrently with the period of required COBRA continuation coverage under the Code. If COBRA continuation coverage is not available, the Company shall reimburse the Executive for premiums for comparable coverage, provided, however, that the reimbursement shall not exceed the greater of (i) two times the annual premium paid by the Company for such coverage at the date of termination or (ii) two times the amount of the COBRA premium under the Company's group health plan for coverage comparable to that elected by the Executive, (A) at the time of the Change of Control or (B) at the time of the required payment, whichever is greater. Welfare benefits (other than health benefits) shall be continued only to the extent permitted under the terms of such plans;
(iv) Continuation of the Executive's then current car benefit for one year in accordance with the Company car policy in effect at the time of termination.
(v) Continued coverage, during the six (6) years following the Executive's termination for his actions or omissions as an officer and, if applicable, director of the Company prior to the date of termination of his employment, under any directors and officers liability insurance policy maintained by the Company (or, if the Company does not maintain such a policy, by its affiliates) for its former directors and officers or, at the Company's election, for the current directors and officers. If the Company or its affiliates does not otherwise maintain such a policy, then the Company shall be required to provide the Executive with such a policy, to the extent available. The policy dollar coverage limits of any such policy shall be not less than the policy limit under any Company policy in place within the one (1) year prior to the Executive's termination of employment (the "Existing Policy") or, if less, the policy dollar coverage limit that can be purchased by the Company for all of its current and former directors and officers at an annual premium equal to two times the Company's annual premium for the Existing Policy.
(d) Subject to Section 11(a) hereof, the Executive's cash severance benefit under Section 4(c)(i) and (ii) shall be paid in a lump sum cash payment within ten (10) days following the Executive's Termination of Employment, as defined in Section 4. Any payment made later than 10 days following the Executive's Termination of Employment (or applicable due date under Section 11(a) hereof) for whatever reason, shall include interest at the prime rate plus two percent, which shall begin accruing on the 10th day following the Executive's Termination of Employment (or applicable due date under Section 11(a) hereof). For purposes of this Section 4, "prime rate" shall be determined by reference to the prime rate established by Comerica Bank (or its successor), in effect from time to time commencing on the 10th day following the Executive's Termination of Employment (or applicable due date under Section 11(a) hereof).
(e) Section 4 of this Agreement shall terminate upon the first of the following events to occur:
(i) Three years from the date hereof if a Change in Control has not occurred within such three-year period;
(ii) Termination of the Executive's employment with the Company prior to a Change in Control, provided, however, if there is a Change in Control within six months after the termination of the Executive's employment with the Company, other than a termination due to the Executive's death or Disability, an involuntary termination by the Company for Cause or a termination of employment by the Executive, then the Agreement shall not be deemed to have terminated and the Executive shall be entitled to receive the Change in Control Severance Benefits provided in Section 4, less any Regular Severance Benefits the Executive has been paid under Section 3, in lieu of the severance benefits the Executive is entitled to under Section 3;
(iii) The expiration of two years following a Change in Control;
(iv) Termination of the Executive's employment with the Company following a Change in Control due to the Executive's death or Disability;
(v) Termination of the Executive's employment by the Company for Cause following a Change in Control; or
(vi) Termination of employment by the Executive for other than Good Reason following the date of a Change in Control. Unless Section 4 of this Agreement has first terminated under clauses (ii) through (vi) hereof, commencing on the third anniversary of the date of this Agreement, and on each one-year anniversary thereafter, Section 4 of this Agreement shall be extended for one additional year, unless at least 180 days prior to any such anniversary, the Company notifies the Executive in writing that it shall not extend the term of Section 4 of this Agreement.
Termination Without Cause The Company may terminate Executive’s employment without Cause.
Involuntary Termination in Connection with a Change in Control Notwithstanding anything contained herein, in the event of an Involuntary Termination prior to a Change in Control, if the Involuntary Termination (1) was at the request of a third party who has taken steps reasonably calculated to effect such Change in Control or (2) otherwise arose in connection with or in anticipation of such Change in Control, then the Executive shall, in lieu of the payments described in Section 4 hereof, be entitled to the Post-Change in Control Severance Payment and the additional benefits described in this Section 5 as if such Involuntary Termination had occurred within two (2) years following the Change in Control. The amounts specified in Section 5 that are to be paid under this Section 5(h) shall be reduced by any amount previously paid under Section 4. The amounts to be paid under this Section 5(h) shall be paid within sixty (60) days after the Change in Control Date of such Change in Control.
OBLIGATIONS SURVIVE TERMINATION OF EMPLOYMENT Executive agrees that any and all of Executive’s obligations under this Agreement, including but not limited to Exhibits B and C, shall survive the termination of employment and the termination of this Agreement.
