Common use of Separation Benefit Clause in Contracts

Separation Benefit. Provided that (i) Executive executes this Agreement in accordance with Section 9(a); (ii) Executive remains employed with the Company in good standing continuously through the Separation Date; and (iii) Executive re-executes and re-affirms this Agreement in accordance with Section 9(b) and it becomes effective pursuant to Section 9(b); then Company shall provide the following payments and benefits to Executive (collectively, the “Separation Benefit”): (a) Executive shall remain eligible to receive an amount representing a pro-rata bonus for calendar year 2023, subject to the discretion of the Board, calculated through August 1, 2023 (the “Pro-Rata Bonus”), which Pro-Rata Bonus shall be paid within ten (10) days following August 1, 2023. (b) If Executive is eligible for and elects to continue his health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) following the Employment Separation Date, then the Company shall pay Executive’s monthly premium under COBRA until the earliest of (A) January 31, 2024; (B) the expiration of Executive’s continuation coverage under COBRA; or (C) the date when Executive becomes eligible to receive health insurance coverage in connection with new employment or self-employment. If the payment of any COBRA or health insurance premiums would otherwise violate the nondiscrimination rules or cause the reimbursement of claims to be taxable under the Patient Protection and Affordable Care Act of 2010, together with the Health Care and Education Reconciliation Act of 2010 (collectively, the “Act”) or Section 105(h) of the Internal Revenue Code (the “Code”), the Company-paid premiums shall be treated as taxable payments and be subject to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment or taxation under the Act or Section 105(h) of the Code. To the extent that any payment pursuant to this Section 3(b) is deemed to be taxable compensation to Executive (“Taxable Benefit”), then the Company shall pay to Executive an amount (the “Gross Up”) to compensate Executive for the economic cost with respect to federal, state and local income and payroll taxes payable with respect to the Taxable Benefit. The calculation of the amount of the Gross Up shall be calculated such that, after payment by Executive of the federal, state and local income and payroll taxes with respect to the Taxable Benefits and the Gross Up, Executive shall be in substantially the same economic position after all taxes as if the Taxable Benefits were not includable in income. For purposes of determining the amount of the Gross Up, Executive shall be deemed to pay federal, state and local income and payroll taxes at the highest marginal rate of taxation in the calendar year in which Executive received the Taxable Benefits. The Gross Up shall be paid no later than December 31 of the year in which Executive received the Taxable Benefits. (c) The Company shall enter into the Consulting Agreement described in Section 5 and provide for the compensation set forth therein. (d) Notwithstanding any terms of the Plan or any award agreements to the contrary, in the event of a Change of Control (as defined in the Consulting Agreement) and provided Executive is a member of the Board on the effective date of the Change of Control, Executive shall become fully vested in any and all equity awards outstanding as of the effective date of the Change of Control. Executive acknowledges that, other than the payments described in this Agreement, the Final Compensation, and the Separation Benefit: (i) all outstanding payments or benefits for outstanding employment periods shall be forfeited in accordance with their terms; and (ii) Executive is not now and shall not in the future be eligible for or entitled to any other compensation from Company, including, without limitation, other wages, commissions, bonuses, vacation pay, holiday pay, paid time off, equity, stock options, restricted stock units, or any other form of compensation or benefit.

Separation Benefit. Provided that (i) Executive executes In exchange for the mutual promises set forth in this Agreement in accordance with Section 9(a); (ii) Executive remains employed with including, without limitation execution and non-revocation of the release set forth below, the Company in good standing continuously through the Separation Date; and (iii) Executive re-executes and re-affirms this Agreement in accordance agrees to provide you with Section 9(b) and it becomes effective pursuant to Section 9(b); then Company shall provide the following payments and benefits to Executive (collectivelytogether, the “Separation Benefit”): (a) Executive shall remain eligible to receive Payment of an amount representing equal to [six (6) – or twelve (12) months] of your current Base Salary (i.e., not including bonuses or other forms of compensation). Payment will be made in equal installments over a properiod of [six (6) – or twelve (12) months] pursuant to the Company’s standard payroll practices beginning on the Company’s first regularly-rata bonus for calendar year 2023scheduled payroll date following the execution and non-revocation of this Agreement, and subject to the discretion of the Board, calculated through August 1, 2023 (the “Pro-Rata Bonus”), which Pro-Rata Bonus shall be paid within ten (10) days following August 1, 2023applicable withholdings and deductions. (b) If Executive is eligible [f applicable] Payment of the Company’s share of normal costs for and elects to continue his health insurance Executive’s coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) following for a period of up to twelve (12) months from termination, to the Employment Separation Date, same extent that such insurance is provided to persons then currently employed by Company. Executive’s portion of monthly premium costs shall be deducted by the Company from the payments set forth above in Section 2(a). Notwithstanding any other provision of this Agreement, this obligation shall pay Executive’s monthly premium under COBRA until the earliest of (A) January 31, 2024; (B) the expiration of Executive’s continuation coverage under COBRA; or (C) cease on the date when Executive becomes eligible to receive health insurance coverage in connection benefits through any other employer, and Executive agrees to provide Company with new employment or self-employmentwritten notice immediately upon becoming eligible for such benefits. If the payment Executive’s acceptance of any COBRA payment on Executive’s behalf or health insurance premiums would otherwise violate the nondiscrimination rules or cause the reimbursement of claims to be taxable under the Patient Protection and Affordable Care Act of 2010, together with the Health Care and Education Reconciliation Act of 2010 (collectively, the “Act”) or Section 105(h) of the Internal Revenue Code (the “Code”), the Company-paid premiums coverage provided hereunder shall be treated as taxable payments and be subject an express representation to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment or taxation under the Act or Section 105(h) of the Code. To the extent Company that any payment pursuant to this Section 3(b) is deemed to be taxable compensation to Executive (“Taxable Benefit”), then the Company shall pay to Executive an amount (the “Gross Up”) to compensate Executive for the economic cost with respect to federal, state and local income and payroll taxes payable with respect to the Taxable Benefit. The calculation of the amount of the Gross Up shall be calculated has no such that, after payment by Executive of the federal, state and local income and payroll taxes with respect to the Taxable Benefits and the Gross Up, Executive shall be in substantially the same economic position after all taxes as if the Taxable Benefits were not includable in income. For purposes of determining the amount of the Gross Up, Executive shall be deemed to pay federal, state and local income and payroll taxes at the highest marginal rate of taxation in the calendar year in which Executive received the Taxable Benefits. The Gross Up shall be paid no later than December 31 of the year in which Executive received the Taxable Benefitseligibility. (c) The Company shall enter into Payment of a prorated Annual Bonus attributable to the Consulting Agreement described fiscal year in Section 5 which Executive’s employment is terminated, and provide subject to applicable withholdings and deductions, based on the number of days Executive was employed during such fiscal year divided by three hundred sixty-five (365), subject to achievement of the performance targets established for the compensation set forth thereinapplicable fiscal year and paid at such time as bonuses for the applicable fiscal year are paid to other senior executives of the Company. (d) Notwithstanding any terms of the Plan or any award agreements to the contrary, Vesting in the event additional number of a Change of Control (outstanding Time-Based Shares, as defined in Section 3(c) of Executive’s Employment Agreement, granted to Executive by Company that would have otherwise vested had Executive remained in employment for an additional three (3) months after the Consulting AgreementSeparation Date. (e) The Separation Benefit shall not constitute a severance plan and provided Executive is a member of the Board shall confer no benefit on the effective date of the Change of Control, Executive shall become fully vested in any and all equity awards outstanding as of the effective date of the Change of Control. Executive acknowledges that, anyone other than the payments described in this Agreementparties hereto. You acknowledge and agree that, except for the Final Compensationspecific financial consideration set forth herein, and the Separation Benefit: (i) all outstanding payments or benefits for outstanding employment periods shall be forfeited in accordance with their terms; and (ii) Executive is you are not now and shall not in the future be eligible for or entitled to any other compensation from Company, including, without limitation, other wages, commissions, bonuses, vacation pay, holiday pay, paid time off, equity, stock options, restricted stock units, or any other form of compensation or benefit. (f) As of and following the Separation Date, you shall not have any right to participate in or acquire any stock options or other equity incentives under any Company equity plan or program. Except for as provided in Section 2(d) above, and in your Employment Agreement, and the Equity Agreement, you represent and agree that (i) you do not own any other common stock, stock options, or other equity interest in the Company, (ii) you have no right to acquire any further stock options, common stock, equity or other interest in the Company and you will not in the future have any right to acquire any further equity or other interest in the Company, and (iii) you shall not have any right to vest in any additional stock or stock options under any Company equity, stock and/or stock option plan or program (of whatever name or kind) that you may have participated in or were eligible to participate in during your employment with the Company.

Separation Benefit. Provided that (i) In exchange for the mutual promises set forth in this Agreement, Company agrees to provide Executive executes this Agreement in accordance with Section 9(a); (ii) Executive remains employed with the Company in good standing continuously through the Separation Date; and (iii) Executive re-executes and re-affirms this Agreement in accordance with Section 9(b) and it becomes effective pursuant to Section 9(b); then Company shall provide the following payments and benefits to Executive (collectivelytogether, the “Separation Benefit”): (a) Company shall pay to Executive shall remain eligible to receive an amount representing a pro-rata bonus for calendar year 2023, subject to the discretion twelve (12) months of severance pay based on Executive’s Base Salary as of the Board, calculated through August 1, 2023 (the “Pro-Rata Bonus”), which Pro-Rata Bonus Separation Date. The foregoing severance pay shall be paid within ten (10) days following August 1in equal installments over the 12-month severance period in accordance with Company’s usual payroll schedule, 2023commencing on the Effective Date. (b) If Company shall pay to Executive is eligible for and elects a severance bonus in the amount of $116,500.00, i.e., an amount equal to continue his health insurance coverage under a portion of the Consolidated Omnibus Budget Reconciliation Act Target Annual Bonus as defined in Executive’s employment agreement with Company dated March 10, 2015 (as amended, the “COBRAEmployment Agreement”), pro-rated based on the period of Executive’s employment in the terminal year of employment through the Separation Date. The foregoing severance bonus shall be paid in one lump sum payment, within sixty (60) days following the Employment Effective Date. (c) For a period of up to twelve (12) months following the Separation Date, then the Company shall pay Executive and where applicable, Executive’s monthly premium under COBRA until the earliest of (A) January 31spouse and eligible dependents, 2024; (B) the expiration of Executive’s continuation coverage under COBRA; or (C) the date when Executive becomes shall continue to be eligible to receive health insurance and medical coverage under Company’s health and medical plans in connection accordance with the terms of the applicable plan documents; provided, that in order to receive such continued coverage at such rates, Executive shall be required to pay the applicable premiums to the plan provider, and Company shall reimburse Executive, within sixty (60) days following the date such monthly premium payment is due, an amount equal to the monthly COBRA (or, as applicable, other) premium payment, less tax withholdings (“COBRA Benefits”). Notwithstanding the above, if Company determines in its sole discretion that it cannot provide the foregoing COBRA benefits without potentially violating applicable law, Company in lieu thereof shall provide to Executive a taxable lump sum payment in an amount equal to the monthly (or then remaining) COBRA premium that Executive would be required to pay to continue his group health and medical coverage on the Separation Date (which amount shall be based on the premium for the first month of COBRA coverage). (d) To the extent applicable, the terms and conditions of Company’s 2013 Incentive Plan (the “Stock Plan”) and any agreements executed by Executive pursuant thereto (the “Stock Agreements”) are expressly incorporated by reference herein and shall survive the signing of this Agreement. Without limiting the foregoing, subject to the terms and conditions of the Stock Plan and Stock Agreements, Executive and Company agree that the Stock Agreements are hereby amended, effective as of the Effective Date of this Agreement, and without any further action by Company, Company’s Board or appropriate committee thereof (which has already approved the following modification), Company’s stockholders or you, as follows: (i) (A) Subject to the terms and conditions of the Stock Plan and Stock Agreements, Executive shall become vested in any outstanding time-based stock options granted to Executive by Company prior to the Separation Date that would have vested under the Stock Plan and Stock Agreements in the twelve (12) month period following the Separation Date, with the vesting of such stock options to occur during the twelve (12) month period following the Separation Date on the same schedule as would apply had Executive remained engaged as an employee through such twelve (12) month time period and otherwise met applicable eligibility requirements under the Stock Plan and Stock Agreements; and (B) Any vested portion of stock options granted to Executive by Company (for clarity, including the stock options described in subsection (A)) shall remain exercisable by Executive for a period of twelve (12) months following the Separation Date or, if earlier, the normal expiration date of such stock options (i.e., the latest date on which any such stock options shall be exercisable shall be April 27, 2019). (ii) Subject to the terms and conditions of the Stock Plan and Stock Agreements, Executive shall become vested in any outstanding time-based shares of restricted stock granted to Executive by Company prior to the Separation Date that would have vested under the Stock Plan and Stock Agreements in the twelve (12) month period following the Separation Date, with the vesting of such time-based shares of restricted stock to occur during the twelve (12) month period following the Separation Date on the same schedule as would apply had Executive remained engaged as an employee through such twelve (12) month time period and otherwise met applicable eligibility requirements under the Stock Plan and Stock Agreements. (iii) Any shares of restricted stock subject to the Market Share Milestone described in the Employment Agreement shall remain outstanding for a period of twelve (12) months following the Separation Date, and to the extent that the Market Share Milestone is achieved during such twelve-month period, the shares of restricted stock subject to the Market Share Milestone shall vest and become non-forfeitable pursuant to the Plan and the applicable Restricted Stock Agreement. (iv) Subject to the terms and conditions of the Stock Plan and the May 25, 2016 “FDA Milestone” Stock Option Agreement between Executive and Company (the “FDA Milestone Stock Option Agreement”), Executive shall become vested in outstanding stock options granted to Executive by Company prior to the Separation Date that would have vested under the Stock Plan and FDA Milestone Stock Option Agreement in the twelve (12) month period following the Separation Date (i.e., 227,500 stock options scheduled to vest in November 2018), with the vesting of such stock options to occur during the twelve (12) month period following the Separation Date on the same schedule as would apply had Executive remained engaged as an employee through such twelve (12) month time period and otherwise met applicable eligibility requirements under the Stock Plan and FDA Milestone Stock Option Agreement; and (B) Any vested portion of stock options granted to Executive by Company (for clarity, including the stock options described in subsection (A)) shall remain exercisable by Executive for a period of twelve (12) months following the Separation Date or, if earlier, the normal expiration date of such stock options (i.e., the latest date on which any such stock options shall be exercisable shall be April 27, 2019). (v) Any unvested portion of stock options and any shares of restricted stock and other equity incentives outstanding and/or unvested as of the Separation Date (other than as specifically referenced in Section 2(d)(i), (ii), (iii) and (iv) above) shall immediately lapse and be forfeited without consideration as of the Separation Date. (vi) Other than as specifically provided for herein, following the Separation Date there shall be no acceleration of vesting of unvested stock options or unvested shares of restricted stock under the Stock Plan or Stock Agreements, and no acceleration of vesting of any unvested portion of the stock options described in Section 2(d)(i) and 2(d)(iv) or unvested portion of the shares of restricted stock described in Sections 2(d)(ii) and 2(d)(iii) under the Stock Plan or Stock Agreements, whether pursuant to a Change in Control (as defined in the Stock Plan or Stock Agreements) or otherwise. For clarity, in the event of the consummation of a Change in Control (as defined in the Stock Plan) within the twelve (12) months following the Separation Date, Executive shall receive only those stock options and shares of restricted stock vested to that point, with no additional acceleration of unvested options or unvested shares of restricted stock under the Stock Plan or Stock Agreements. To the extent that any provision of this Section 2(d)(vi) conflicts with any provision of the Stock Plan (including but not limited to Section 14.6 of the Stock Plan), the provisions of this Section 2(d)(vi) shall govern. (vii) Executive acknowledges and agrees that, other than as described herein, following the Separation Date: (A) Executive has no right to acquire any additional equity or other interest in Company and shall not in the future have any right to acquire any additional equity or other interest in Company; and (B) Executive shall not have any right to vest in any stock, stock option or restricted stock under any Company equity, stock or stock option plan or program (of whatever name or kind) that Executive may have participated in or was eligible to participate in during Executive’s employment with Company. (e) Company shall provide Executive with outplacement services, at Company’s cost and through an outplacement service provider retained by Company, through the earlier of six (6) months following the Effective Date or Executive obtaining new employment with another entity or organization (including self-employment). If Such outplacement services shall commence within sixty (60) days of the payment of any COBRA Effective Date or health insurance premiums would otherwise violate they shall be deemed waived. Executive shall be contacted by the nondiscrimination rules or cause outplacement service provider retained by Company with information about the reimbursement of claims to services for which Executive is eligible. Outplacement services shall be taxable under the Patient Protection and Affordable Care Act of 2010, together provided in a manner consistent with the Health Care and Education Reconciliation Act requirements of 2010 (collectively, the “Act”) or Section 105(h) 409A of the Internal Revenue Code (the “Code”), the Company-paid premiums shall be treated as taxable payments and be subject to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment or taxation under the Act or Section 105(h) of the Code. To the extent that any payment pursuant to this Section 3(b) is deemed to be taxable compensation to Executive (“Taxable Benefit”), then the Company shall pay to Executive an amount (the “Gross Up”) to compensate Executive for the economic cost with respect to federal, state and local income and payroll taxes payable with respect to the Taxable Benefit. The calculation of the amount of the Gross Up shall be calculated such that, after payment by Executive of the federal, state and local income and payroll taxes with respect to the Taxable Benefits and the Gross Up, Executive shall be in substantially the same economic position after all taxes as if the Taxable Benefits were not includable in income. For purposes of determining the amount of the Gross Up, Executive shall be deemed to pay federal, state and local income and payroll taxes at the highest marginal rate of taxation in the calendar year in which Executive received the Taxable Benefits. The Gross Up shall be paid no later than December 31 of the year in which Executive received the Taxable Benefits. (c) The Company shall enter into the Consulting Agreement described more fully in Section 5 and provide for the compensation set forth therein. (d) Notwithstanding any terms of the Plan or any award agreements to the contrary, in the event of a Change of Control (as defined in the Consulting Agreement) and provided Executive is a member of the Board on the effective date of the Change of Control, Executive shall become fully vested in any and all equity awards outstanding as of the effective date of the Change of Control11). Executive acknowledges that, and agrees that the Separation Benefit is not intended to and does not constitute a severance plan or confer a benefit on anyone other than the payments described in this Agreement, parties. Executive further acknowledges that except for the Final Compensation, Separation Benefit and the Separation Benefit: (i) all outstanding payments or benefits for outstanding employment periods shall be forfeited in accordance with their terms; and (ii) Accrued Obligations, Executive is not now and shall not in the future be eligible for or entitled to any other compensation from Company, Company including, without limitation, other wages, commissions, bonuses, vacation pay, holiday pay, paid time off, equitystock, stock options, restricted stock unitsequity, or any other form of compensation or benefit.

Separation Benefit. Provided that In exchange for the mutual promises set forth in this Agreement, and beginning as soon as practicable after the eighth (i8th) Executive executes day following your execution of this Agreement in accordance with Section 9(a(the “Effective Date”); (ii) Executive remains employed with , provided that you do not revoke the Agreement before the Effective Date, the Company in good standing continuously through the Separation Date; and (iii) Executive re-executes and re-affirms this Agreement in accordance agrees to provide you with Section 9(b) and it becomes effective pursuant to Section 9(b); then Company shall provide the following payments and benefits to Executive (collectivelytogether, the “Separation Benefit”): (a) Executive The Company shall remain eligible to receive an amount representing a pro-rata bonus for calendar year 2023provide you with payment in lieu of notice under your February 14, subject to the discretion of the Board, calculated through August 1, 2023 2011 Employment Agreement (the “Pro-Rata BonusEmployment Agreement”)) in an amount equal to one month of your base salary, which Pro-Rata Bonus plus payment in an amount equal to your base salary for a period of six months, on the following terms: (i) payment in lieu of the one month notice period and the first two months of severance payments (i.e., an amount equal to three months of your base salary) shall be paid in one lump sum within ten (10) days following August 1the Effective Date; and (ii) the remaining amount (i.e., 2023an amount equal to four months of your base salary) shall be paid in equal installments over a four month period following the payment described in subsection (i), in accordance with the Company’s normal payroll practices. All payments described herein shall be less all customary and required taxes and employment-related deductions, in accordance with the Company’s normal payroll practices. (b) If Executive Upon completion of appropriate COBRA1/ forms, and subject to the requirements of COBRA, the Company shall continue your participation in the Company’s medical, dental and vision insurance plan at the Company’s cost through February 28, 2013, to the same extent that such insurance is eligible provided to persons currently employed by the Company. Your co-pay for such coverage shall be deducted from the payments under subsection (a) above or, if no such payments remain to be paid, shall be paid by you directly to the Company within seven (7) days of receipt of notice of such payment due. You and elects the Company understand and acknowledge that Public Health Service Act section 2716 (imposing non-discrimination rules and requirements on fully-insured group health plans), once implemented, may cause the Company to continue his health insurance incur penalties. Should this occur, the parties agree to renegotiate the requirement to provide subsidized COBRA coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”terms of this Section 2(b) following so as to preserve the Employment Separation Date, then the Company shall pay Executive’s monthly premium under COBRA until the earliest of (A) January 31, 2024; (B) the expiration of Executive’s continuation coverage under COBRA; or (C) the date when Executive becomes eligible to receive health insurance coverage in connection with new employment or self-employment. If the payment of any COBRA or health insurance premiums would otherwise violate the nondiscrimination rules or cause the reimbursement of claims to be taxable under the Patient Protection and Affordable Care Act of 2010, together with the Health Care and Education Reconciliation Act of 2010 (collectively, the “Act”) or Section 105(h) intent of the Internal Revenue Code (parties without running afoul of applicable law. You acknowledge and agree that the “Code”), the Company-paid premiums shall be treated as taxable payments Separation Benefit is not intended to and be subject to imputed income tax treatment to the extent necessary to eliminate any discriminatory treatment does not constitute a severance plan or taxation under the Act or Section 105(h) of the Code. To the extent that any payment pursuant to this Section 3(b) is deemed to be taxable compensation to Executive (“Taxable Benefit”), then the Company shall pay to Executive an amount (the “Gross Up”) to compensate Executive for the economic cost with respect to federal, state and local income and payroll taxes payable with respect to the Taxable Benefit. The calculation of the amount of the Gross Up shall be calculated such that, after payment by Executive of the federal, state and local income and payroll taxes with respect to the Taxable Benefits and the Gross Up, Executive shall be in substantially the same economic position after all taxes as if the Taxable Benefits were not includable in income. For purposes of determining the amount of the Gross Up, Executive shall be deemed to pay federal, state and local income and payroll taxes at the highest marginal rate of taxation in the calendar year in which Executive received the Taxable Benefits. The Gross Up shall be paid no later than December 31 of the year in which Executive received the Taxable Benefits. (c) The Company shall enter into the Consulting Agreement described in Section 5 and provide for the compensation set forth therein. (d) Notwithstanding any terms of the Plan or any award agreements to the contrary, in the event of confer a Change of Control (as defined in the Consulting Agreement) and provided Executive is a member of the Board benefit on the effective date of the Change of Control, Executive shall become fully vested in any and all equity awards outstanding as of the effective date of the Change of Control. Executive acknowledges that, anyone other than the payments described in this Agreement, the Final Compensation, and parties. You further acknowledge that except for the Separation Benefit, along with: (i) all outstanding payments or benefits for outstanding employment periods shall your final wages, (ii) any accrued but unused vacation, and (iii) any documented and appropriate business expenses incurred prior to the Separation Date and properly submitted under Company policy (with such amounts described in (i)-(iii) to be forfeited paid to you in accordance with their terms; the Company’s regular payroll practices and (ii) Executive is applicable law), you are not now and shall not in the future be eligible for or entitled to any other compensation from Company, the Company including, without limitation, other wages, commissions, bonuses, vacation pay, holiday pay, paid time off, equitystock, stock options, restricted stock unitsequity, or any other form of compensation or benefit.