Common use of Separation Arrangements Clause in Contracts

Separation Arrangements. (a) Executive shall be entitled to payment through the Termination Date of his base salary in effect prior to the Termination Date. Any accrued vacation amount shall also be paid on the Termination Date. Executive agrees to submit to the Company any and all expenses, which are business-related and reimbursable to Executive by the Company, on or before thirty (30) days after the Termination Date. (b) Upon any Constructive Termination or termination by the Company without Cause (other than upon death or Disability), in addition to the payments in section 2(a) above, the Executive shall, subject to the provisions of section 2(f) and compliance with section 3(a), be entitled to the following: (i) The Company shall pay to Executive an amount equal to the greater of (A) Executive’s annual base salary in effect as of December 31, 2008, and (B) his annual base salary as of the Termination Date (the “Severance Salary”), which Severance Salary shall be made in periodic payments to Executive in accordance with the Company’s regular payroll practices with respect to the twelve-month period beginning on the Termination Date; provided, however, that the first such payment shall be made on the first regular payroll payment date following the Release Effective Date (as defined below) and shall include all amounts that otherwise would have been paid to Executive in accordance with the Company’s regular payroll practices during the period beginning on the Termination Date and ending on such date. Executive shall not have the right to make contributions to the Company’s 401(k) savings plan from the Severance Salary payments made under this section 2(b)(i). (ii) The Company shall pay to Executive an amount equal to the greater of (A) the annual bonus target in effect on December 31, 2008, and (B) the annual bonus target in effect as of the Termination Date (the “Bonus Payment”). Such Bonus Payment shall be made in installments, with each such installment being equal to a fraction, the numerator of which is the Bonus Payment and the denominator of which is twelve (12) (each, an “Installment Amount”), and each such Installment Amount shall be paid on the last business day of each calendar month (each, a “Payment Date”) with respect to the period beginning on the Termination Date and ending on the last day of the twelfth (12th) month following the Termination Date; provided, however, that the first installment shall (x) be paid to Executive on the first Payment Date following the Release Effective Date and (y) shall include any Installment Amounts that otherwise would have been paid to Executive on any Payment Date which occurred during the period beginning on the Termination Date and ending on the Release Effective Date. Notwithstanding the foregoing, the combined total of Severance Salary and Bonus Payment paid to Executive after the Termination Date shall not exceed Six Hundred Fifty Thousand Dollars ($650,000.00) and all payments under sections 2(b)(i) and 2(b)(ii) shall terminate once such limit is reached. (iii) To the extent permitted by law and the terms of the applicable welfare benefit plan, and subject to the occurrence of the Release Effective Date, Executive shall continue to participate in such medical benefits, dental benefits, life insurance, and long-term disability plans in which he is enrolled for twelve (12) months following the Termination Date, as if he were still employed by the Company; provided, however, that if the terms of the applicable welfare benefit plan or plans do not permit such continued participation by Executive, the Company shall, at its option, (A) provide Executive with welfare benefits that are substantially equivalent (on an after-tax basis) to those provided to Executive under the Company’s welfare benefit plans as of the Termination Date, which benefits shall be provided at the Company’s expense (less the amount of any applicable premiums that would have been paid by Executive under the Company’s applicable welfare benefit plan had Executive continued participation thereunder), or (B) reimburse Executive (on an after-tax basis) for the cost of welfare benefits that are substantially equivalent to those provided to Executive under the Company’s welfare benefit plans as of the Termination Date (provided that Executive shall not be reimbursed for the amount of any applicable premiums that would have been paid by Executive under the Company’s applicable welfare benefit plans had Executive continued participation thereunder). At the expiration of such twelve (12) month period, Executive shall be entitled to COBRA coverage. (c) If, within twenty-four (24) months after a Change of Control, Executive’s employment is terminated due to a Constructive Termination or is terminated by the Company without Cause (other than upon death or Disability), all outstanding stock options, and other equity grants (including, without limitation, restricted stock, restricted stock units, and warrants) granted to Executive shall become 100% vested as of the Termination Date and shall be exercisable and otherwise payable in accordance with their terms. Notwithstanding anything herein or in an applicable restricted stock unit award agreement to the contrary, with respect to any restricted stock units held by Executive, a Constructive Termination shall only be deemed to have occurred if such termination constitutes an “involuntary separation from service” for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance issued thereunder (the “Code”). (d) All payments to Executive shall be less all amounts required or authorized to be withheld by applicable federal, state, or local law. (e) Notwithstanding anything herein to the contrary, in the event that Executive is determined to be a specified employee in accordance with Section 409A of the Code for purposes of any severance payment under this Agreement, such severance payments shall be made or begin, as applicable, on the first payroll date which is more than six (6) months following the date of separation from service, to the extent required to avoid the adverse tax consequences to Executive under Section 409A of the Code. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Notwithstanding anything contained herein to the contrary, to the extent required to avoid the adverse tax consequences under Section 409A of the Code, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payments shall be due to him under this Agreement which are payable upon his termination of employment until he would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year. In addition, any right to reimbursement or in-kind benefit granted hereunder shall not be subject to liquidation or exchange for another benefit. (f) Executive agrees that Executive shall be entitled to the severance pay and benefits as set forth in this Agreement only if Executive does not materially breach the provisions of this Agreement at any time during the period for which such payments or benefits are to be made or provided. The Company’s obligation to make such payments and provide such benefits will terminate upon the occurrence of any such material breach during the severance period.

Separation Arrangements. (a) Executive shall be entitled to payment through the Termination Date of his base salary in effect prior to through the Termination Date. Any accrued vacation amount shall also be paid on the Termination Date. Executive agrees to submit to the Company any and all expenses, which are business-related and reimbursable to Executive by the Company, on or before thirty (30) days after the Termination Date. (b) Upon any Constructive Termination or termination by In consideration of the Company without Cause obligations of Executive herein (other than upon death or Disability), in addition to including the payments release in section 2(a3) above, the Executive shall, and subject to Executive’s execution and failure to revoke this Agreement following the provisions of section 2(f) and compliance with section 3(a), be entitled to the followingTermination Date: (i) The Company shall pay continue to Executive make periodic payments to Executive, in accordance with the Company’s regular payroll practices, of an amount equal to the greater higher of (A) Executive’s annual base salary in effect as of December 31, 2008, and (B) or his annual base salary as of the Termination Date (the “Severance Salary”), which Severance Salary shall be made in periodic payments to Executive in accordance with the Company’s regular payroll practices with respect to the twelve-month period beginning on the Termination Date; provided, however, that the first such payment shall be made on the first regular payroll payment date following the Release Effective Date (as defined below) and shall include all amounts that otherwise would have been paid to Executive in accordance with the Company’s regular payroll practices during the period beginning on the Termination Date and ending on such datecontinuing for a period of twelve (12) months. Executive shall not have the right to make contributions to the Company’s 401(k) savings plan from the Severance Salary payments made under this section 2(b)(i). (ii) The Company shall pay to Executive Executive, in twelve (12) monthly installments, commencing on the last day of the calendar month following the Termination Date, and on the last day of the next eleven (11) succeeding months, an amount equal to one-twelfth of the greater higher of (A) the annual bonus target in effect on December 31, 2008, and (B) the annual bonus target in effect or as of the Termination Date (the “Bonus Payment”). Such Bonus Payment shall be made in installments, with each such installment being equal to a fraction, the numerator of which is the Bonus Payment and the denominator of which is twelve (12) (each, an “Installment Amount”), and each such Installment Amount shall be paid on the last business day of each calendar month (each, a “Payment Date”) with respect to the period beginning on the Termination Date and ending on the last day of the twelfth (12th) month following the Termination Date; provided, however, that the first installment shall (x) be paid to Executive on the first Payment Date following the Release Effective Date and (y) shall include any Installment Amounts that otherwise would have been paid to Executive on any Payment Date which occurred during the period beginning on the Termination Date and ending on the Release Effective Date. Notwithstanding the foregoing, the combined total of Severance Salary and Bonus Payment paid to Executive after the Termination Date shall not exceed Six Hundred Fifty Thousand Dollars ($650,000.00) and all payments under sections 2(b)(i) and 2(b)(ii) shall terminate once such limit is reached). (iii) To the extent permitted by law and the terms of the applicable welfare benefit plan, and subject to the occurrence of the Release Effective Date, Executive shall continue to participate in such medical benefits, dental benefits, life insurance, and long-term disability plans in which he is enrolled for twelve (12) months following the Termination Date, as if he were still employed by the Company; provided, however, that if the terms of the applicable welfare benefit plan or plans do not permit such continued participation by Executive, the Company shall, and at its option, (A) provide Executive with welfare benefits that are substantially equivalent (on an after-tax basis) to those provided to Executive under the Company’s welfare benefit plans as of the Termination Date, which benefits shall be provided at the Company’s expense (less the amount of any applicable premiums that would have been paid by Executive under the Company’s applicable welfare benefit plan had Executive continued participation thereunder), or (B) reimburse Executive (on an after-tax basis) for the cost of welfare benefits that are substantially equivalent to those provided to Executive under the Company’s welfare benefit plans as of the Termination Date (provided that Executive shall not be reimbursed for the amount of any applicable premiums that would have been paid by Executive under the Company’s applicable welfare benefit plans had Executive continued participation thereunder). At the expiration of such twelve (12) twelve-month period, Executive shall be entitled to COBRA coverage. (civ) If, within twenty-four (24) months after a Change of Control, Executive’s employment is terminated due to a Constructive Termination or is terminated by the Company without Cause (other than upon death or Disability), all All outstanding stock options, and other equity grants (including, without limitation, restricted stock, restricted stock units, and warrants) granted to Executive shall become 100% vested as of the Termination Date and shall be exercisable and otherwise payable in accordance with their terms. Notwithstanding anything herein or in an applicable restricted stock unit award agreement to the contrary, with respect to any restricted stock units held by Executive, a Constructive Termination shall only be deemed to have occurred if such termination constitutes an “involuntary separation from service” for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and other guidance issued thereunder (the “Code”)term. (dv) All payments to Executive shall be less all amounts required or authorized to be withheld by applicable federal, state, or local law. (e) Notwithstanding anything herein to the contrary, in the event that Executive is determined to be a specified employee in accordance with Section 409A of the Code for purposes of any severance payment under this Agreement, such severance payments shall be made or begin, as applicable, on the first payroll date which is more than six (6) months following the date of separation from service, to the extent required to avoid the adverse tax consequences to Executive under Section 409A of the Code. Each amount to be paid or benefit to be provided under this Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Notwithstanding anything contained herein to the contrary, to the extent required to avoid the adverse tax consequences under Section 409A of the Code, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payments shall be due to him under this Agreement which are payable upon his termination of employment until he would be considered to have incurred a “separation from service” from the Company within the meaning of Section 409A of the Code. To the extent required to avoid an accelerated or additional tax under Section 409A of the Code, amounts reimbursable to Executive under this Agreement shall be paid to Executive on or before the last day of the year following the year in which the expense was incurred and the amount of expenses eligible for reimbursement (and in-kind benefits provided to Executive) during any one year may not affect amounts reimbursable or provided in any subsequent year. In addition, any right to reimbursement or in-kind benefit granted hereunder shall not be subject to liquidation or exchange for another benefit. (f) Executive agrees that Executive shall be entitled to the severance pay and benefits as set forth in this Agreement only if Executive does not materially breach the provisions of this Agreement at any time during the period for which such payments or benefits are to be made or provided. The Company’s obligation to make such payments and provide such benefits will terminate upon the occurrence of any such material breach during the severance period.