Compensation Upon Termination Upon termination of the Executive’s employment within twenty-four (24) months following a Change in Control of the Corporation, unless such termination is because of the Executive’s death, or by the Corporation for Cause or Disability or by the Executive other than for Good Reason, the Corporation shall pay to the Executive the following:
(i) The Corporation shall pay the Executive his full salary (whether such salary has been paid by the Corporation or by any of its subsidiaries) through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination under any plan or other arrangement of the Company, at the time such payments are due (and in any event within 90 days after the Separation from Service);
(A) The Corporation shall pay to the Executive an amount equal to 1.5 multiplied by the Executive’s annualized includable compensation for the base period, within the meaning of Section 280G(d)(1) of the Code, provided, however, that if any of such payment is or will be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed (“Excise Tax”), such payment shall be reduced to a smaller amount, even to zero, which smaller amount shall be the largest amount payable under this paragraph that would not be subject in whole or in part to the Excise Tax after considering all other payments to the Executive required to be considered under Sections 4999 or 280G of the Code. Such payment shall be referred to as the “Severance Payment.” The Severance Payment shall be made in a lump sum within 90 days after the Separation from Service.
(B) In the event that the Severance Payment is subsequently determined to be less than the amount actually paid hereunder, the Executive shall repay the excess to the Corporation at the time that the proper amount is finally determined, plus interest on the amount of such repayment at the Applicable Federal Rate. In the event that the Severance Payment is determined to exceed the amount actually paid hereunder, the Corporation shall pay the Executive such difference plus interest on the amount of such additional payment at the Applicable Federal Rate at the time that the amount of such difference is finally determined.
(C) In the event that the amount of the Severance Payment exceeds or is less than the amount initially paid, such difference shall constitute a loan by the Corporation to the Executive, or by the Executive to the Corporation, as the case may be, payable on the fifth (5th) day after demand (together with interest at the Applicable Federal Rate).
(D) The amount of any payment provided for in this subparagraph shall not be reduced, offset or subject to recovery by the Company or the Company’s Successor by reason of any compensation earned by the Executive as the result of employment by another Corporation after the Date of Termination, or otherwise.
(ii) The Corporation shall also pay to the Executive all legal fees and related expenses incurred by the Executive in connection with this Agreement, whether or not the Executive prevails (including, without limitation, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(iii) The Corporation shall maintain in full force and effect, for the Executive’s continued benefit until the earlier of (A) the death of the Executive; (B) the Executive’s commencement of full-time employment with a new Corporation; or (C) twenty-four (24) months following the Operative Date, all life insurance, medical, health and accident, and disability plans, programs or arrangements in which the Executive was entitled to participate immediately prior to the Operative Date, provided that the Executive’s continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive’s participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive is entitled to receive under such plans and programs. In the case of any insurance provided the Executive pursuant to this subparagraph (iii), each premium therefor shall be paid after, but no later than 30 days after, the Corporation’s receipt of the invoice for such premium. No coverage shall be provided to the Executive under a self-insured medical plan of the Corporation after the Separation from Service; provided that such coverage may be provided during the period of time during which the Executive would be entitled to continuation coverage under such plan pursuant to Section 4980A of the Code if the Executive elected such continuation coverage and paid the applicable premiums. Except for coverage permitted by the preceding sentence, no benefits shall be provided pursuant to this subparagraph (iii) other than through the purchase of insurance by the Corporation.
(iv) The Executive shall not be required to mitigate the amount of any payment provided under the Agreement by seeking other employment or otherwise. It is specifically understood that any compensation the Executive receives from the Corporation or any other person for services rendered prior to or after termination of employment, such as a payment under any deferred compensation plan maintained by the Corporation, will not reduce or offset the benefits to which he is entitled hereunder.
Payments Upon Termination of Employment (a) If Executive's employment with the Company is terminated by reason of:
(i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company);
(ii) termination of Executive's employment by the Company for Cause (as defined below); or
(iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits).
(b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts:
(i) Executive’s then-current base salary through the Termination Date;
(ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and
(iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs.
(c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.
