Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest. (b) If during the term of this Agreement Employee is prevented from performing his duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration. (c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, for Employee’s (i) gross negligence in the performance of his duties, upon notice of same from Company and failure to cure within 30 days; (ii) intentional misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below). (d) The Company or Employee may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to the other. In the event that Employee is removed from his position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d). (e) If this Agreement is terminated by the Company pursuant to Sections 5(b) or 5(d), then (i) the Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date of Employee’s termination; and (iii) the Company shall pay the premiums for continuation of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee shall execute a release reasonably acceptable to the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement. (f) In the event of a consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold (a “Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event shall be accelerated to occur immediately upon such event. (g) If Employee gives notice of termination pursuant to Section 5(d), the Company may, at its option, terminate Employee immediately upon payment to Employee of 30 days salary or salary for the remainder of the notice period, whichever is less, subject to all applicable deductions and withholdings. A termination initiated by Employee pursuant to the first sentence of Section 5(d) shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal year, and shall create no severance obligation under Section 5(e).
Appears in 1 contract
Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his material duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, For Cause for Employee’s (i) gross negligence in negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance of his dutiesexpectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days; , or (ii) intentional iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; , or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee Either party may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to the other. In the event that Employee is removed from his position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d)other party.
(e) If this Agreement Employee’s employment is terminated by the Company prior to the end of the term pursuant to Sections 5(bany provision other than Section 5(a) or 5(d5(c), then then, provided Employee executes the release described in Section 5(g) below and complies with his obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Sections 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ year’s current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount , in equal semi-monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) provided Employee timely elects, and remains eligible for, continued group health plan benefits to the extent authorized by and consistent with 29 U.S.C. § 1161 et seq. (“COBRA”), the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, shall pay COBRA premiums to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date of maintain Employee’s terminationhealth insurance coverage for one year; and (iii) the Company shall pay cause any issued but unvested equity scheduled to vest in the premiums for continuation year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control (collectively “Severance Benefits”). In the event of (x) a requested relocation of Employee’s principal workplace by more than 50 miles from Boulder following Employee’s relocation to Boulder; (y) any reduction of Employee’s salary to a rate below Employee’s initial annual salary; or (z) a material diminishment of Employee’s duties or position, Employee may elect to resign with Good Reason and shall be entitled to receive from Company the Severance Benefits listed in this paragraph. A resignation with Good Reason will not be deemed to have occurred unless Employee gives the Company written notice of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially condition within 30 days after the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer condition comes into existence specifying all relevant facts and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee shall execute a release reasonably acceptable to the Company and fails to remedy the condition within 30 days after receipt of Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement’s written notice.
(f) In the event If this Agreement is terminated by Company pursuant to Section 5(d) as a result of a Change of Control, then all outstanding options granted to Employee as of such Change of Control shall immediately vest (to the extent they are not already vested). For purposes of this Agreement, (i) a “Change of Control shall mean the consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold sold; and (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of this Agreement during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event . The foregoing acceleration provision shall be accelerated to occur immediately upon such eventsupplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(g) If As a condition to receiving any severance payments and benefits under this Agreement, Employee gives notice shall execute and return to the Company, on or before the Release Expiration Date (as defined below), a full and complete release of all claims against the Company, its affiliates, and their respective employees, officers, directors, owners and members, in a form reasonably acceptable to the Company (the “Release”). For purposes of this Agreement, the “Release Expiration Date” means the date that is 28 days following the date that the Company timely delivers the Release to Employee, or in the event that Employee’s termination pursuant to Section 5(dof employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is 52 days following such delivery date. Notwithstanding any provision to the contrary in this Agreement, (i) the Company may, at its option, terminate Employee immediately upon payment will deliver the Release to Employee within 10 business days following the termination date, and the Company’s failure to timely deliver a Release will constitute a waiver of 30 days salary any requirement to execute a Release; (ii) if Employee fails to execute the Release or salary for the remainder of Release fails to become irrevocable on or before the notice periodRelease Expiration Date, whichever is less, subject Employee will not be entitled to all applicable deductions any severance payments under this Agreement; and withholdings. A termination initiated by Employee pursuant to (iii) payments under this Agreement shall commence on the first sentence payroll period commencing after the Release becomes irrevocable, provided however, that if the termination date and the Release Expiration Date fall in two separate taxable years, any payments that are treated as nonqualified deferred compensation for purposes of Section 5(d) shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal 409A will be made in the later taxable year, and shall create no severance obligation under Section 5(e).
Appears in 1 contract
Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his duties duties, after reasonable accommodation, by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration. The reference to the term “duties” in the first sentence of this Section 5(b) shall not include immaterial duties that have little impact on the Company; provided, however, that the determination of what is immaterial shall be in the reasonable discretion of the Company.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, for Employee’s (i) gross negligence in the performance of his duties, upon notice of same from Company and failure to cure within 30 days; (ii) intentional misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s property or timetime (other than immaterial misuse such as use of supplies such as staplers or paper for personal use); or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below), upon notice of same from Company and failure to cure within 30 days. The reference to the term “duties” in the first sentence of (c)(i) above shall not include immaterial duties that have little impact on the Company; provided, however, that the determination of what is immaterial shall be in the reasonable discretion of the Company. In addition, the reference to “misconduct” in item (c)(ii) and “violations” of any state or federal law in (c)(ii) above shall not include immaterial acts and conduct, on the one hand, or immaterial violations, on the other hand (such as traffic violations), that have little impact on the Company; provided, however, that the determination of what is immaterial shall be in the reasonable discretion of the Company.
(d) The Company or Employee may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to the other. In the event that any one or more of the following in (i) through (v) occur: (i) Employee is removed from his position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminisheddiminished (including, without limitation, a diminution in Employee’s authority, duties, responsibilities or CEO title), (ii) Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, (iii) a material diminution of Employee’s base salary, (iv) a change in the geographic location of Employee’s primary place of employment of greater than fifty (50) miles, (v) the Company materially breaches any of its obligations to Employee pursuant to this Agreement and such breach is not cured within thirty days of notice (including, without limitation, a failure to issue the securities contemplated by Section 3(c) above), Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d).
(e) If this Agreement is terminated by the Company (or deemed to be terminated by the Company) pursuant to Sections Section 5(b) or 5(d), then then, on the later of: (1) the date that is sixty (60) days following Employee’s termination; or, if applicable, (2) the first date such amount may be paid to Employee in order to comply with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) issued under Section 409A of the Code (“Section 409A”), the Company shall: (i) the Company shall pay as severance to Employee one years’ year’s current base salary (provided that a termination by the Company pursuant to Section 5(d) resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) in a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any an amount equal to the target Performance Bonus for which Employee would the year of termination (provided that a termination by the Company pursuant to Section 5(d) resulting from a Change of Control defined in Section 5(f) shall cause the payment contemplated by this (ii) to be eligible for that year, pro-rated based on the date of Employee’s terminationincreased to such target Performance Bonus multiplied by two); and (iii) pay to Employee a lump sum amount, which after the Company shall pay application of all deductions and withholdings, equals the premiums total cost for continuation of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer and is eligible . Employee’s unvested equity scheduled to receive health insurance benefits under vest in the plans year of such other employer, then the health insurance benefits described herein termination shall be secondary deemed vested in connection with a termination by Company pursuant to those provided under such other plans during such applicable period Section 5(d); provided, however, that this sentence shall not diminish the 100% vesting contemplated by 5(f) below in connection with a Change of eligibilityControl. As a condition to receiving any severance payments under this AgreementSection, Employee shall execute a release reasonably acceptable to the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this AgreementAgreement (it being agreed that the Noncompete Agreement shall not be applicable should Employee waive rights to such severance benefits). A failure of the Company to renew this Agreement at the end of the initial term or any renewal period shall be treated as a termination by the Company pursuant to Section 5(d) resulting in the above benefits contemplated by this Section 5(e). For the avoidance of doubt, Employee’s rights to the payments contemplated in this Section 5(e) shall not be diminished solely as a result of Employee taking subsequent employment.
(f) In For purposes of this Agreement, the event term “Change of Control” shall mean either (i) the occurrence of a consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of either the fair market value or book value of the Company’s assets are sold or (ii) a “majority of members of the Board of directors are replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Board before the date of the appointment or election. Upon the occurrence of Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event shall be accelerated to occur immediately upon such event.
. For purposes of this Agreement (gincluding Sections 5(d) If and 5(e)), a termination shall be deemed to be “in relation to” or the “result of” a Change of Control if, without limiting the generality of such phrases, the Company terminates or is deemed to have terminated Employee gives notice of termination pursuant to Section 5(d), ) of this Agreement during the Company may, at its option, terminate Employee immediately upon payment to Employee of 30 days salary or salary for the remainder of the notice period, whichever is less, subject to all applicable deductions and withholdings. A termination initiated by Employee pursuant period commencing three months prior to the first sentence occurrence (or expected occurrence) of Section 5(d) shall cause no acceleration a Change of vesting Control and ending 12 months after the occurrence of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal year, and shall create no severance obligation under Section 5(e)Change of Control.
Appears in 1 contract
Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his material duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, For Cause for Employee’s (i) gross negligence in negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance of his dutiesexpectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days; , or (ii) intentional iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; , or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee Either party may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to the other. In the event that Employee is removed from his position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d)other party.
(e) If this Agreement Employee’s employment is terminated by the Company prior to the end of the term pursuant to Sections 5(b) or 5(dany provision other than 5(c), then then, provided Employee (or Employee’s estate) executes the release described in Section 5(g) below and complies with his obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Section 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ year’s current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount , in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) provided Employee timely elects, and remains eligible for, continued group health plan benefits to the extent authorized by and consistent with 29 U.S.C. § 1161 et seq. (“COBRA”), the Company shall, within 60 days from receipt of the audited financial statements shall pay COBRA premiums to maintain Employee’s health insurance coverage for that fiscal one year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date of Employee’s termination; and (iiiii) the Company shall pay cause any issued but unvested options and RSUs scheduled to vest in the premiums for continuation year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control (collectively “Severance Benefits”). In the event of (x) a requested relocation of Employee’s principal workplace by more than 50 miles from Boston following Employee’s relocation to Boston; (y) any reduction of Employee’s salary ; or (z) material diminishment of Employee’s duties or position, Employee may elect to resign with Good Reason and shall be entitled to receive from Company the Severance Benefits listed in this paragraph. A resignation with Good Reason will not be deemed to have occurred unless Employee gives the Company written notice of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially condition within 30 days after the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer condition comes into existence specifying all relevant facts and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee shall execute a release reasonably acceptable to the Company and fails to remedy the condition within 30 days after receipt of Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement’s written notice.
(f) In the event If this Agreement is terminated by Company pursuant to Section 5(d) as a result of a Change of Control, then all outstanding options granted to Employee as of such Change of Control shall immediately vest (to the extent they are not already vested). For purposes of this Agreement, (i) a “Change of Control shall mean the consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold sold; and (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) or (e) of this Agreement, respectively, during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event . The foregoing acceleration provision shall be accelerated to occur immediately upon such eventsupplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(g) If As a condition to receiving any severance payments and benefits under this Agreement, Employee gives notice shall execute and return to the Company, on or before the Release Expiration Date (as defined below), a full and complete release of all claims against the Company, its affiliates, and their respective employees, officers, directors, owners and members, in a form reasonably acceptable to the Company (the “Release”). For purposes of this Agreement, the “Release Expiration Date” means the date that is 28 days following the date that the Company timely delivers the Release to Employee, or in the event that Employee’s termination pursuant to Section 5(dof employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is 52 days following such delivery date. Notwithstanding any provision to the contrary in this Agreement, (i) the Company may, at its option, terminate Employee immediately upon payment will deliver the Release to Employee within 10 business days following the Termination Date, and the Company’s failure to timely deliver a Release will constitute a waiver of 30 days salary any requirement to execute a Release; (ii) if Employee fails to execute the Release or salary for the remainder of Release fails to become irrevocable on or before the notice periodRelease Expiration Date, whichever is less, subject Employee will not be entitled to all applicable deductions any severance payments under this Agreement; and withholdings. A termination initiated by Employee pursuant to (iii) payments under this Agreement shall commence on the first sentence payroll period commencing after the Release becomes irrevocable, provided however, that if the Termination Date and the Release Expiration Date fall in two separate taxable years, any payments that are treated as nonqualified deferred compensation for purposes of Section 5(d) shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal 409A will be made in the later taxable year, and shall create no severance obligation under Section 5(e).
Appears in 1 contract
Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, for Employee’s (i) gross negligence in negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance of his dutiesexpectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days; , or (ii) intentional iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to Employee.
(e) If this Agreement is terminated by the otherCompany prior to the end of the term pursuant to any provision other than 5(a) or 5(c), then (i) the Company shall pay as severance to Employee one year’s current base salary, in equal monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; and (ii) the Company shall cause any issued but unvested options scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control. In the event that Employee is removed from his position of (x) reduction of Employee’s salary to a rate below the initial annual salary; or (y) material diminishment of Employee’s duties as Chief Executive Officer Medical Officer; or (z) consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company, ’s voting power is transferred or his duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member more than 50% of the Board Company’s assets are sold (collectively, a “Change of Directors during the term of this AgreementControl”), Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d).
(e) If this Agreement is terminated by the Company pursuant to Sections 5(b) or 5(d), then (i) the Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date of Employee’s termination; and (iii) the Company shall pay the premiums for continuation of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this AgreementSection 5, Employee shall execute a release reasonably acceptable to the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement.
(f) In the event If this Agreement is terminated pursuant to 5(d) as a result of a consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold (a “Change of Control”), then the vesting of 100% of all outstanding and unvested equity awards options granted to Employee as of such Change of Control shall immediately vest (to the date extent they are not already vested). For purposes of this Agreement, a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such event shall be accelerated phrase, the Company terminates or is deemed to occur immediately upon such event.
(g) If have terminated Employee gives notice of termination pursuant to Section 5(d), ) of this Agreement during the Company may, at its option, terminate Employee immediately upon payment to Employee of 30 days salary or salary for the remainder of the notice period, whichever is less, subject to all applicable deductions and withholdings. A termination initiated by Employee pursuant period commencing three months prior to the first sentence occurrence (or expected occurrence) of Section 5(d) a Change of Control and ending 12 months after the occurrence of a Change of Control. The foregoing acceleration provision shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal yearbe supplementary to, and shall create no severance obligation not diminish any rights that Employee has under Section 5(e)any other written agreement with the Company, including an option certificate or agreement.
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Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his her estate the compensation that would otherwise be payable to him her for the month in which his her death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his her material duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his her duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his her duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, For Cause for Employee’s (i) gross negligence in negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance of his dutiesexpectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days; , or (ii) intentional iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his her employment; , or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee Either party may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to the other. In the event that Employee is removed from his position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d)other party.
(e) If this Agreement Employee’s employment is terminated by the Company prior to the end of the term pursuant to Sections 5(bany provision other than Section 5(a) or 5(d5(c), then then, provided Employee executes the release described in Section 5(g) below and complies with her obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Sections 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ year’s current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount , in equal semi-monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; and (ii) the Company shallshall cause any issued but unvested equity scheduled to vest in the year of termination to immediately vest; provided, within 60 days from receipt however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control (collectively “Severance Benefits”). In the audited financial statements for that fiscal year, but not sooner than expiration event of the Section 409A Time Period, pay to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date (x) a requested relocation of Employee’s terminationprincipal workplace by more than 50 miles from Boulder following Employee’s relocation to Boulder; (y) any reduction of Employee’s salary to a rate below Employee’s initial annual salary; or (z) a material diminishment of Employee’s duties or position, Employee may elect to resign with Good Reason and (iii) shall be entitled to receive from Company the Severance Benefits listed in this paragraph. A resignation with Good Reason will not be deemed to have occurred unless Employee gives the Company shall pay the premiums for continuation written notice of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially condition within 30 days after the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer condition comes into existence specifying all relevant facts and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee shall execute a release reasonably acceptable to the Company and fails to remedy the condition within 30 days after receipt of Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement’s written notice.
(f) In the event If this Agreement is terminated by Company pursuant to Section 5(d) as a result of a Change of Control, then all outstanding options granted to Employee as of such Change of Control shall immediately vest (to the extent they are not already vested). For purposes of this Agreement, (i) a “Change of Control shall mean the consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold sold; and (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of this Agreement during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event . The foregoing acceleration provision shall be accelerated to occur immediately upon such eventsupplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(g) If As a condition to receiving any severance payments and benefits under this Agreement, Employee gives notice of termination pursuant shall execute and return to Section 5(dthe Company, on or before the Release Expiration Date (as defined below), the Company may, at its option, terminate Employee immediately upon payment to Employee a full and complete release of 30 days salary or salary for the remainder of the notice period, whichever is less, subject to all applicable deductions and withholdings. A termination initiated by Employee pursuant to the first sentence of Section 5(d) shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal year, and shall create no severance obligation under Section 5(e).claims against the
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Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, time for Employee’s (i) gross negligence in negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance of his dutiesexpectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days; , or (ii) intentional iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to Employee.
(e) If this Agreement is terminated by the otherCompany prior to the end of the term pursuant to any provision other than 5(a) or 5(c), then, provided Employee executes the release described in Section 5(g) below and complies with his obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Section 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one year’s current base salary, in equal monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; and (ii) the Company shall cause any issued but unvested options scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control. In the event that Employee is removed from his position as Chief Executive Officer of (y) reduction of Employee’s salary to a rate below the Company, initial annual salary; or his (z) material diminishment of Employee’s duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member Senior Vice President of the Board of Directors during the term of this AgreementCommercial Operations, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d).
(ef) If this Agreement is terminated by the Company pursuant to Sections 5(b5(d) or 5(das a result of a Change of Control, then all outstanding options granted to Employee as of such Change of Control shall immediately vest (to the extent they are not already vested), then (i) the and Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a Change of Control defined in Section 5(f) shall cause the severance payment to be increased to two years’ current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any target Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date year of Employee’s termination; and (iii) the Company shall pay the premiums for continuation . For purposes of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee (i) a “Change of Control shall execute a release reasonably acceptable to mean the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement.
(f) In the event of a consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold sold; and (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of this Agreement during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event . The foregoing acceleration provision shall be accelerated to occur immediately upon such eventsupplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(g) If As a condition to receiving any severance payments under this Agreement, Employee gives notice shall execute and return to the Company, on or before the Release Expiration Date (as defined below), a full and complete release of all claims against the Company, its affiliates, and their respective employees, officers, directors, owners and members, in a form reasonably acceptable to the Company (the “Release”). For purposes of this Agreement, the “Release Expiration Date” means the date that is 28 days following the date that the Company timely delivers the Release to Employee, or in the event that Employee’s termination pursuant to Section 5(dof employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is 52 days following such delivery date. Notwithstanding any provision to the contrary in this Agreement, (i) the Company may, at its option, terminate Employee immediately upon payment will deliver the Release to Employee within 10 business days following the Termination Date, and the Company’s failure to timely deliver a Release will constitute a waiver of 30 days salary any requirement to execute a Release; (ii) if Employee fails to execute the Release or salary for the remainder of Release fails to become irrevocable on or before the notice periodRelease Expiration Date, whichever is less, subject Employee will not be entitled to all applicable deductions any severance payments under this Agreement; and withholdings. A termination initiated by Employee pursuant to (iii) payments under this Agreement shall commence on the first sentence payroll period commencing after the Release becomes irrevocable, provided however, that if the Termination Date and the Release Expiration Date fall in two separate taxable years, any payments that are treated as nonqualified deferred compensation for purposes of Section 5(d) shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal 409A will be made in the later taxable year, and shall create no severance obligation under Section 5(e).
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Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “continuous” notwithstanding Employee’s performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ prior notice, time for Employee’s (i) gross negligence in negligence; (ii) material breach of any obligation created by this Agreement; (iii) a violation of any policy, procedure or guideline of the Company, of any material injury to the economic or ethical welfare of the Company caused by Employee’s malfeasance, misfeasance, misconduct or inattention to Employee’s duties and responsibilities, or any other material failure to comply with the Company’s reasonable performance of his dutiesexpectations, upon notice of same from Company and failure to cure such violation, injury or failure within 30 days; , or (ii) intentional iv), misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee may terminate this Agreement at any time for any or no reason upon at least 30 days’ notice to Employee.
(e) If this Agreement is terminated by the otherCompany prior to the end of the term pursuant to any provision other than 5(a) or 5(c), then, provided Employee executes the release described in Section 5(g) below and complies with his obligations under the Confidential Information Agreement and Noncompete Agreement incorporated by reference in Section 6 and 7 of this Agreement: (i) the Company shall pay as severance to Employee one year’s current base salary, in equal monthly installments in accordance with the Company’s standard payroll practices, subject to all applicable deductions and withholdings; and (ii) the Company shall cause any issued but unvested options scheduled to vest in the year of termination to immediately vest; provided, however, that this sentence shall not diminish the vesting contemplated by 5(f) below in connection with a Change of Control. In the event that Employee is removed from his position as Chief Executive Officer of (y) reduction of Employee’s salary to a rate below the Company, initial annual salary; or his (z) material diminishment of Employee’s duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member of the Board of Directors during the term of this AgreementScientific Officer, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d).
(ef) If this Agreement is terminated by the Company pursuant to Sections 5(b5(d) or 5(d)as a result of a Change of Control, then all outstanding options granted to Employee as of such Change of Control shall immediately vest (to the extent they are not already vested). For purposes of this Agreement, (i) the Company shall pay as severance to Employee one years’ current base salary (provided that a termination by the Company resulting from a “Change of Control defined in Section 5(f) shall cause mean the severance payment to be increased to two years’ current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary and (B) the remaining amount in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date of Employee’s termination; and (iii) the Company shall pay the premiums for continuation of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee shall execute a release reasonably acceptable to the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement.
(f) In the event of a consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s voting power is transferred or more than 50% of the Company’s assets are sold sold; and (ii) a termination shall be deemed to be the “result of” a Change of Control if, without limiting the generality of such phrase, the Company terminates or is deemed to have terminated Employee pursuant to Section 5(d) of this Agreement during the period commencing three months prior to the occurrence (or expected occurrence) of a Change of Control and ending 12 months after the occurrence of a Change of Control”), then the vesting of 100% of outstanding and unvested equity awards granted to Employee as of the date of such event . The foregoing acceleration provision shall be accelerated to occur immediately upon such eventsupplementary to, and shall not diminish any rights that Employee has under any other written agreement with the Company, including an option certificate or agreement.
(g) If As a condition to receiving any severance payments under this Agreement, Employee gives notice shall execute and return to the Company, on or before the Release Expiration Date (as defined below), a full and complete release of all claims against the Company, its affiliates, and their respective employees, officers, directors, owners and members, in a form reasonably acceptable to the Company (the “Release”). For purposes of this Agreement, the “Release Expiration Date” means the date that is 28 days following the date that the Company timely delivers the Release to Employee, or in the event that Employee’s termination pursuant to Section 5(dof employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is 52 days following such delivery date. Notwithstanding any provision to the contrary in this Agreement, (i) the Company may, at its option, terminate Employee immediately upon payment will deliver the Release to Employee within 10 business days following the Termination Date, and the Company’s failure to timely deliver a Release will constitute a waiver of 30 days salary any requirement to execute a Release; (ii) if Employee fails to execute the Release or salary for the remainder of Release fails to become irrevocable on or before the notice periodRelease Expiration Date, whichever is less, subject Employee will not be entitled to all applicable deductions any severance payments under this Agreement; and withholdings. A termination initiated by Employee pursuant to (iii) payments under this Agreement shall commence on the first sentence payroll period commencing after the Release becomes irrevocable, provided however, that if the Termination Date and the Release Expiration Date fall in two separate taxable years, any payments that are treated as nonqualified deferred compensation for purposes of Section 5(d) shall cause no acceleration of vesting of equity awards, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal 409A will be made in the later taxable year, and shall create no severance obligation under Section 5(e).
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Termination and Severance. (a) If Employee dies during the term of this Agreement, (i) the Company shall pay his estate the compensation that would otherwise be payable to him for the month in which his death occurs; (ii) this Agreement shall be considered terminated on the last day of such month; and (iii) the Company shall cause any issued but unvested equity awards Options granted to Employee to immediately vest.
(b) If during the term of this Agreement Employee is prevented from performing his duties by reason of illness or incapacity for a continuous period of 120 days, the Company may terminate this Agreement upon 30 days’ ' prior notice thereof to Employee or his duly appointed legal representative. For the purposes of this Section 5(b), a period of illness or incapacity shall be deemed “"continuous” " notwithstanding Employee’s 's performance of his duties during such period for continuous periods of less than 15 days in duration.
(c) The Company may terminate this Agreement at any time, upon 10 days’ ' prior notice, for Employee’s 's (i) gross negligence in the performance of his duties, upon notice of same from Company and failure to cure within 30 days; (ii) intentional misconduct, including but not limited to, commission of any felony, or of any misdemeanor involving dishonesty or moral turpitude, or violation of any state or federal law in the course of his employment; or theft or intentional misuse of the Company’s 's property or time; or (iii) material breach of any obligation created by this Agreement (including the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 below).
(d) The Company or Employee may terminate this Agreement at any time for any or no reason upon at least 30 days’ ' notice to the other. In the event that Employee is removed from his position as Chief Executive Officer of the Company, or his duties as Chief Executive Officer are materially diminished, or Employee is not elected to serve as a member of the Board of Directors during the term of this Agreement, Employee may elect to treat any such event, by notice of termination within 30 days of its occurrence, as a termination by the Company pursuant to this Section 5(d).
(e) If this Agreement is terminated by the Company pursuant to Sections 5(b) or 5(d), then (i) the Company shall pay as severance to Employee one years’ ' current base salary salary, in equal monthly installments, subject to all applicable deductions and withholdings (provided that a termination by the Company resulting from a Change change of Control defined control event described in Section 5(f) shall cause the severance payment to be increased to two years’ ' current base salary) payable commencing on the first date such amounts may be paid to Employee without incurring an additional tax under Section 409A of the Internal Revenue Code (the time from the date of Employee’s termination until such date being the “Section 409A Time Period”) as follows: (A) a lump sum amount equal to the number of months during the Section 409A Time Period multiplied by Employee’s monthly base salary ); and (B) the remaining amount in equal monthly installments thereafter in accordance with the Company’s standard payroll practices, in each case subject to all applicable deductions and withholdings; (ii) the Company shall, within 60 days from receipt of the audited financial statements for that fiscal year, but not sooner than expiration of the Section 409A Time Period, pay to Employee any Performance Bonus for which Employee would be eligible for that year, pro-rated based on the date of Employee’s 's termination; and (iii) the Company shall pay the premiums for continuation of the health insurance benefits for Employee and, if applicable, his eligible dependents under COBRA at substantially the same level of coverage in effect immediately preceding such termination for 12 months following the last day of the month in which the termination occurs, provided that if Employee becomes reemployed by another employer and is eligible to receive health insurance benefits under the plans of such other employer, then the health insurance benefits described herein shall be secondary to those provided under such other plans during such applicable period of eligibility. As a condition to receiving any severance payments under this Agreement, Employee shall execute a release reasonably acceptable to the Company and Employee, and shall comply with his obligations under the Noncompete Agreement and Confidentiality and Inventions Agreement incorporated by reference in Sections 6 and 7 of this Agreement.
(f) In the event of a consolidation or merger involving the Company in which the Company is not the surviving entity or any transaction in which more than 50% of the Company’s 's voting power is transferred or more than 50% of the Company’s 's assets are sold (a “Change of Control”)sold, then the vesting of 100% of outstanding and unvested equity awards the Options granted hereunder to Employee as of the date of such event shall be accelerated to occur immediately upon such event.
(g) If Employee gives notice of termination pursuant to Section 5(d), the Company may, at its option, terminate Employee immediately upon payment to Employee of 30 days salary or salary for the remainder of the notice period, whichever is less, subject to all applicable deductions and withholdings. A termination initiated by Employee pursuant to the first sentence of Section 5(d) shall cause no acceleration of vesting of equity awardsOptions, shall cause Employee to forfeit his eligibility for a Performance Bonus for that fiscal year, and shall create no severance obligation under Section 5(e).
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