Prior to a Change in Control. Termination by the Company for Poor Performance. If, prior to the occurrence of a Change in Control, the Company terminates Executive’s employment for Poor Performance, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes the Release): (i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and (ii) for the shortest of 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer (the “Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and (iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and (iv) the initial grant of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof will become immediately vested as of the Date of Termination, and all other grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and (v) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and (vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and (vii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by the Company for Poor Performance. If, prior to the occurrence of a Change in Control, the Company terminates Executive’s employment for Poor Performance, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes the Release):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and;
(ii) for the shortest of (a) 12 months after the Date of Termination, ; (b) the remaining term of Executive’s Employment Period, ; or (c) until Executive becomes employed with a subsequent employer (the “Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his her monthly Base Salary, payable in equal bi-weekly installments or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and;
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his her Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and;
(iv) the initial grant of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof will become immediately vested as of the Date of Termination, and all other grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and;
(v) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and;
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th 90’h day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and;
(vii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his her Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by the Company for Poor Performance. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment for Poor Performance, then (and with respect to the payments and benefits described in clauses (ii) through (viiix) below, only if Executive executes the Release):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and
(ii) for on the shortest six (6) month anniversary of 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer Termination (the “Poor Performance Severance PeriodPay Date”), the Company shall pay the Executive a lump sum equal to the amount of the Executive’s Base Salary from the Date of Termination until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (as defined in Section 13 of this Agreement) and failed to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation;
(iii) thereafter, for up to six (6) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments will shall cease if Executive becomes employed with a subsequent employer or earns an income in connection with a non-executive board position provided such income is reasonable anticipated to be more than $100,000 (see section 17 (h)) for the then current calendar year or earns an income from any other non-employee activity provided such non-employee compensation (plus the value of any equity received) is reasonably anticipated to be more than $50,000 for the then current calendar year, or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Poor Performance Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the first twelve (12) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageCode; and
(ivv) the initial grant of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof will become immediately vested as of not later than 30 days after the Date of Termination, and Executive will be paid a bonus for the year in which the Date of Termination occurs in an amount not less than 50% of his then current potential Bonus Opportunity at target levels; and
(vi) all other grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 1224-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vvii) all of Executive’s Options that would have become vested (by lapse of time) within the 1224-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(viviii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi8(b)(vii) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiix) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; Termination the sum of Executive’s Base Salary through the Date of Termination to the extent not theretofore paid (“Accrued Obligations”), and
(ii) for on the shortest six (6) month anniversary of 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer Termination (the “Poor Performance Severance PeriodPay Date”), the Company shall pay the Executive a lump sum equal to the amount of the Executive’s Base Salary from the Date of Termination until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (as defined in Section 13 of this Agreement) and failed to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation;
(iii) thereafter, for up to twelve (12) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments will shall cease if Executive becomes employed with a subsequent employer or earns an income in connection with a non-executive board position provided such income is reasonable anticipated to be more than $100,000 (See section 17 (h)) for the then current calendar year or earns an income from any other non-employee activity provided such non-employee compensation (plus the value of any equity received) is reasonably anticipated to be more than $50,000 for the then current calendar year, or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Poor Performance Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the eighteen (18) such month period, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 Code; and
(v) not later than 30 days after the Date of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance PeriodTermination, Executive will be responsible paid a bonus for paying the full cost year in which the Date of the COBRA continuation coverage Termination occurs in accordance with the procedures an amount not less than 50% of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coveragehis then current potential Bonus Opportunity at target levels; and
(ivvi) all grants of restricted stock of the initial grant Company (“Restricted Stock”) held by Executive as of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof the Date of Termination will become immediately vested as of the Date of Termination, and ; and
(vii) all other grants of Restricted Executive’s options to acquire Common Stock held by Executive as of the Date of Termination Company (“Options”) that would have become vested (by lapse of time) within the 1224-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vviii) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi8(a)(vii) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
Appears in 1 contract
Prior to a Change in Control. Termination by the Company for Poor Performance. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment for Poor Performance, then (and with respect to the payments and benefits described in clauses (ii) through (viivi) below, only if Executive executes the Release):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and
(ii) for the shortest shorter of 12 six (6) months after the Date of Termination, the remaining term of Executive’s Employment Period, Termination or until Executive becomes employed with a subsequent employer employer, earns an income from becoming an owner, partner, or an independent contractor of any other entity, or in the event Employee earns an income from becoming a consultant, starting a business, or otherwise, (the “Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined set forth in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income shall continue benefits to the Executive and/or Executive’s family at least equal to those which would have been provided to them in accordance with the full premium amountWelfare Plans described in Section 5(c) of this Agreement if Executive’s employment had not been terminated; provided, however that the Company’s obligation to provide such benefits will shall cease if Executive violates any of the Restrictive Covenants (as defined set forth in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) the initial grant of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof will become immediately vested as of the Date of Termination, and all other grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 1224-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vvi) all of Executive’s Options that would have become vested (by lapse of time) within the 1224-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vivii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi8(b)(v) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(vii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by the Company for Poor Performance. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment for Poor Performance, then (and with respect to the payments and benefits described in clauses (ii) through (viiv) below, only if Executive executes the Release):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and
(ii) for on the shortest six month anniversary of 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer Termination (the “Poor Performance Severance PeriodPay Date”), the Company will continue to shall pay the Executive an amount a lump sum equal to his monthly six (6) months of the Executive’s Base Salary, payable in equal bi-weekly installments or more frequent installments as are customary under the Company’s payroll practices from time to time; providedprovided however, however that the Company’s Company shall have no obligation to make or continue such payments will cease payment if Executive violates has violated any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails failed to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and;
(iii) during for a period of eighteen (18) months after the Poor Performance Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the first six (6) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageCode; and
(iv) the initial grant of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof will become immediately vested as of the Date of Termination, and all other grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(v) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viiv) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiviii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; Termination the sum of Executive’s Base Salary through the Date of Termination to the extent not theretofore paid (“Accrued Obligations”), and
(ii) for on the shortest six month anniversary of 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer Termination (the “Poor Performance Severance PeriodPay Date”), the Company shall pay the Executive a lump sum equal to the amount of the Executive’s Base Salary from the Date of Termination until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (as defined in Section 13 of this Agreement) and failed to remedy such violation to the satisfaction of the Chief Executive Officer within 10 days of notice of such violation; and
(iii) thereafter, for up to three (3) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Executive becomes employed with a subsequent employer or earns an income which will cease be reportable as non-employee compensation on a 1099 form provided such non-employee compensation is reasonably anticipated to be more than $25,000 a year or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Poor Performance Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the first nine (9) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageCode; and
(ivv) all grants of restricted stock of the initial grant Company but not performance units (“Restricted Stock”) held by Executive as of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof the Date of Termination whose restrictions would lapse within the 12-month period following the Date of Termination will become immediately vested as of the Date of TerminationTermination and, and all other grants of Restricted Stock held by Executive as of if the Date of Termination occurs during a Performance Cycle (as defined in any applicable performance unit award certificate and terms and conditions) the Company may, but shall not be required to, determine that some or all of the performance units shall be earned at the end of the Performance Cycle based on actual performance as of the end of the Performance Cycle; and
(vi) all of Executive’s options to acquire Common Stock of the Company (“Options”) that would have become vested (by lapse of time) within the 12-24- month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vvii) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi8(a)(vi) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viiviii) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiv) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of TerminationTermination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the shortest shorter of 12 nine (9) months after the Date of Termination, the remaining term of Executive’s Employment Period, Termination or until Executive becomes employed with a subsequent employer employer, earns an income from becoming an owner, partner, or an independent contractor of any other entity, or in the event Employee earns an income from becoming a consultant, starting a business, or otherwise, (the “Poor Performance Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined set forth in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) the initial grant of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof will become immediately vested as of the Date of Termination, and all other grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(v) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(vii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
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Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiviii) below, only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”) within 30 days of the Date of Termination):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; Termination the sum of Executive’s Base Salary through the Date of Termination to the extent not theretofore paid (“Accrued Obligations”), and
(ii) for on the shortest six (6) month anniversary of 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer Termination (the “Poor Performance Severance PeriodPay Date”), the Company shall pay the Executive a lump sum equal to the amount of the Executive’s Base Salary from the Date of Termination until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (as defined in Section 13 of this Agreement) and failed to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation;
(iii) thereafter, for up to twelve (12) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal bi-weekly installments monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Executive becomes employed with a subsequent employer or earns an income which will cease be reportable as non-employee compensation on a 1099 form provided that such non-employee compensation is reasonably anticipated to be more than $50,000 per year or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Poor Performance Severance PeriodDate of Termination, if Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the eighteen (18) month period, provided, however, that the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent Executive timely elects COBRA continuation coveragethat such health care coverage is provided by the new employer, and
(v) on the six (6) month anniversary of the Date of Termination, the Company will shall pay Executive a lump sum bonus for the full premium year in which the Date of Termination occurs in an amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided50% of his then current potential Bonus Opportunity at target levels, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(ivvi) all grants of restricted stock of the initial grant Company, (“Restricted Stock”) held by Executive as of Restricted Stock made to Executive in connection with his employment as referenced in Section 5(b)(ii) hereof the Date of Termination will become immediately vested as of the Date of Termination, and ; and
(vii) all other grants of Restricted Executive’s options to acquire Common Stock held by Executive as of the Date of Termination Company (“Options”) that would have become vested (by lapse of time) within the 12-24- month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vviii) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(c)(vi8(a)(vii) above) will shall remain exercisable through the earlier earliest of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2C) the end date that is the l0th anniversary of the Poor Performance Severance Periodoriginal date of grant of the Option; and
(viiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”) to the extent permitted under the applicable plan or policies.
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