Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreement; (B) a reduction in the then current Base Salary; (C) causing or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment (the last day of such 45-day period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” Reason (as defined below) ), provided the Company has not previously notified her of its intent to terminate his employment for Cause and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a8(a), 9(b8(b) or 9(c8(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any either of the following events: (Aa) a material reduction in the nature or scope of Executive’s responsibilities, duties and/or authority; provided, that a change in job position (including a change in title) shall not be deemed a “material reduction” in and of itself unless Executive’s responsibilities, duties and/or or authority from those contemplated by this Agreementare materially reduced; or (Bb) a material reduction in Executive’s then-current Base Salary, which the then Company and Executive agree is at least 10% of Executive’s then-current Base Salary; (C) causing or requiring Executive provided, that a reduction in Base Salary shall not be “Good Reason” to report to any person other than the CEO; (D) extent that the relocation salary reduction is made as part of Executive’s primary office to a location that is not within a sixty (60) mile radius broader salary reduction program of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company affecting a majority of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreementsimilarly situated employees; provided, that any such event described in (Aa) through or (Eb) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and Executive terminates his employment within thirty (ii30) subject to Executive’s executiondays following the end of the cure period, delivery and non-revocation of an effective release of all claims against the Company Group substantially or (c) a material change in the form attached hereto as Exhibit A location at which Executive must perform her services; provided that in no event will the relocation of Executive to a facility or location of fifty (the “Release”50) within the forty-five (45) day period following the date of the termination of Executive’s employment (the last day of such 45-day period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times miles or less from Executive’s then current Base Salary office location be deemed material for purposes of this Agreement and (yd) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary a material breach of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d)by Company.
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Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” Reason (as defined below) ), provided the Company has not previously notified him in writing of its intent to terminate his employment for Cause, and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a8(a), 9(b8(b) or 9(c8(c), respectively, collectively, an “Involuntary Termination”). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (Aa) a material reduction in the nature or scope of Executive’s responsibilities, duties or and/or authority; provided, that a change in job position (including a change in title) shall not be deemed a “material reduction” in and of itself unless Executive’s responsibilities, duties and/or authority from those contemplated by this Agreementare materially reduced; (Bb) a material reduction in Executive’s then-current Base Salary, which the then Company and Executive agree is at least 10% of Executive’s then-current Base Salary; (C) causing or requiring Executive provided, that a reduction in Base Salary shall not be “Good Reason” to report to any person other than the CEOextent the reduction is made as part of a broader compensation reduction program of the Company affecting a majority of similarly situated employees; (Dc) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to change in the Company to expressly assume and agree to location at which Executive must perform this Agreementhis services; provided, that any such in no event will the relocation of Executive to a facility or location of fifty (50) miles or less from Executive’s then current office location be deemed material for purposes of this Agreement; or (d) a material breach of this Agreement by the Company. No event described in clauses (Aa) through (Ed) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and Executive terminates his employment within thirty (ii30) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period days following the date end of the termination of Executive’s employment (the last 30 day of such 45-day cure period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” Reason (as defined below) ), provided the Company has not previously notified her of its intent to terminate her employment for Cause and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a8(a), 9(b8(b) or 9(c8(c), respectively, collectively, an “Involuntary Termination”)). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (Aa) a material reduction in the nature or scope of Executive’s responsibilities, duties or and/or authority; provided, that a change in job position (including a change in title) shall not be deemed a “material reduction” in and of itself unless Executive’s responsibilities, duties and/or authority from those contemplated by this Agreementare materially reduced; (Bb) a material reduction in Executive’s then-current Base Salary, which the then Company and Executive agree is at least 10% of Executive’s then-current Base Salary; (C) causing or requiring Executive provided, that a reduction in Base Salary shall not be “Good Reason” to report to any person other than the CEOextent that the salary reduction is made as part of a broader salary reduction program of the Company affecting a majority of similarly situated employees; (Dc) a material change in the location at which Executive must perform her services; provide that in no event will the relocation of Executive to a facility or location of fifty (50) miles or less from Executive’s primary then current office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a be deemed material term for purposes of this Agreement, including but not limited to ; and (d) a material breach of Section 11(d)(iii) this Agreement by failing to cause any successor to the Company to expressly assume and agree to perform this AgreementCompany; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and Executive terminates her employment within thirty (ii30) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period days following the date end of the termination of Executive’s employment (the last day of such 45-day cure period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” Reason (as defined below) ), provided the Company has not previously notified him of its intent to terminate his employment for Cause and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any either of the following events: (Aa) a material reduction in the nature or scope of Executive’s responsibilities, duties and/or authority; provided, that a change in job position (including a change in title) shall not be deemed a “material reduction” in and of itself unless Executive’s responsibilities, duties and/or or authority from those contemplated by this Agreementare materially reduced; or (Bb) a material reduction in Executive’s then-current Base Salary, which the then Company and Executive agree is at least 10% of Executive’s then-current Base Salary; (C) causing or requiring Executive provided, that a reduction in Base Salary shall not be “Good Reason” to report to any person other than the CEO; (D) extent that the relocation salary reduction is made as part of Executive’s primary office to a location that is not within a sixty (60) mile radius broader salary reduction program of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company affecting a majority of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreementsimilarly situated employees; provided, that any such event described in (Aa) through or (Eb) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and Executive terminates his employment within thirty (ii30) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period days following the date end of the termination of Executive’s employment (the last day of such 45-day cure period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).
Appears in 1 contract
Sources: Employment Agreement (Lpath, Inc)
Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreement; (B) a reduction in the then current Base Salary; (C) causing or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLeanTempe, VirginiaArizona; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason, and Executive’s resignation from all positions he then holds with the Company is effective not later than thirty (30) days following the end of the cure period. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, Amounts and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment Separation from Service, the following severance benefits (the last day of such 45-day periodcollectively, the “Release DateSeverance Benefits”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).):
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Termtime, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) ), provided the Company has not previously notified him of its intent to terminate his employment for Cause and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a8(a), 9(b8(b) or 9(c8(c), respectively). “Good Reason” shall will mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a material reduction in the nature or scope of Executive’s responsibilities, duties and/or authority; provided, that a change in job position (including a change in title) will not be deemed a “material reduction” in and of itself unless Executive’s responsibilities, duties and/or or authority from those contemplated by this Agreementare materially reduced; (B) a material reduction in Executive’s then-current Base Salary, which the then Company and Executive agree is at least 10% of Executive’s then-current Base Salary; provided, that a reduction in Base Salary will not be “Good Reason” to the extent that the salary reduction is made as part of a broader salary reduction program of the Company Group affecting a majority of similarly situated employees; (C) causing or requiring a material reduction in the responsibilities, duties and/or authority of the supervisor to whom Executive is required to report to any person other than the CEOreport; (D) the relocation of Executive’s primary office to a location that is not within a increases Executive’s one-way commute by more than sixty (60) mile radius of the Company’s offices in McLean, Virginiamiles; or (E) any other material breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii10(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform in all material respects this Agreement; provided, that any such event described in (A) through (E) above shall will not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason, and Executive resigns from all positions he then-holds with the Company Group effective not later than six (6) months following the initial existence of the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d8(d), and provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definitions thereunder, a “Separation From Service”), Executive shall will receive (iA) the Accrued Amounts, and and, (iiB) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five sixty (4560) day period following the date of the termination of Executive’s employment Separation From Service, the following severance benefits (the last day of such 45-day periodcollectively, the “Release DateSeverance Benefits”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).):
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Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a6(a), 9(b6(b) or 9(c6(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreement; (B) a reduction in the then current Base Salary; (C) causing or requiring Executive to report to any person other than the CEOBoard; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii8(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d6(d), Executive shall receive (i) the Accrued Amounts, and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment (the last day of such 45-day period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 19851985 (“COBRA”), continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance PeriodPeriod (or, at the Company’s election, Executive shall pay the full cost of such COBRA premiums and the Company shall promptly reimburse Executive for such COBRA premiums); provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d6(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d6(d).
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Termination for Good Reason or Without Cause. At any time during the Term, (i) the Executive may terminate the Term and Executive’s 's employment hereunder for “Good Reason” (as defined below) Reason and (ii) the Company may terminate the Term and Executive’s 's employment hereunder without Cause (that is, and other than by death, Disability for death or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectivelyDisability). “"Good Reason” " shall mean the occurrence, without the Executive’s 's prior written consent, of any of the following events: (A) a significant reduction in the nature or scope of the Executive’s responsibilities, 's authority or duties or authority from those contemplated by this Agreement; provided, that Good Reason shall not be deemed to occur solely as a result of a transaction in which the Company becomes a substantially wholly-owned subsidiary of another company or division so long as the Executive's title, duties, responsibilities and authority described in Section 3(a), as they relate solely to the Company, are not reduced in any significant manner; or (B) a reduction in the then current Base Salary; (C) causing , target Annual Bonus or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor fringe benefits specific to the Company to expressly assume and agree to perform this AgreementExecutive; provided, that that, any such event described in (A) through or (EB) above shall not constitute Good Reason unless and until the Executive delivers to shall have provided the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery with notice of such Notice of Termination for Good Reason event and the Company has shall have failed to cure the circumstances giving rise to Good Reasonremedy such event within 30 days of receipt of such notice. Upon Following the termination of the Executive’s 's employment hereunder pursuant to this Section 9(d8(d), Executive shall receive (i) within five (5) days following termination, a lump sum payment of (A) any earned but unpaid Base Salary through the Accrued Amountsdate of termination, (B) any earned but unpaid Bonus for any Fiscal Year preceding the Fiscal Year in which the termination occurs, and (C) the Pro Rata Bonus plus (ii) 12 monthly payments, commencing on the first day of the month immediately following Executive's termination of employment, each of which shall be equal to one 1/12 of the sum of (A) (x) if the termination occurs at any time other than during the 12-month period following a Change in Control, one times (1 x) the Executive's Base Salary (at the rate then in effect), and (y) if the termination occurs during the 12-month period following a Change in Control, two times (2 x) the Executive's Base Salary (at the rate then in effect) and (B) the Executive's target Annual Bonus. In addition, upon a termination of Executive's employment pursuant to this Section 8(d), (i) the unvested portion of the Initial Option Grant shall expire upon such termination and the vested portion of the Initial Option Grant shall remain exercisable for the period set forth in the Option Agreement and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in shall continue to provide health benefits to the form attached hereto as Exhibit A (Executive for the “Release”) within the fortyone-five (45) day year period following the date of Executive's termination; provided, that the Company's obligation to provide any such benefits shall cease with respect to such benefit at the time Executive becomes eligible for such benefit from another employer. To the extent that the provision of any health or other welfare benefit is not permissible after termination of Executive’s employment (under the last day terms of such 45-day periodthe benefit plans of the Company then in effect, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”)Company shall pay to Executive such amount as is necessary to provide Executive, after tax, with an amount equal to the sum cost of (x) one (1) times Executive’s then current Base Salary acquiring, for Executive and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided thathis spouse and dependents, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00any, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution ratesnon-group basis, for the Severance Period; provided thatrequired period, such coverage those health and other welfare benefits that would otherwise be lost to Executive and his spouse and dependents as a result of Executive's termination. The Executive shall terminate earlier if and have no further rights to the extent Executive becomes eligible to receive health insurance coverage any compensation (including any Base Salary or Annual Bonus) or any other benefits under a plan maintained or provided for the employees of any subsequent employerthis Agreement. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d8(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, however, that Executive shall not be entitled to any payments or benefits under participate in any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d)Company.
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Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreement; (B) a reduction in the then current Base Salary; (C) causing or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason, and Executive’s resignation from all positions he then holds with the Company is effective not later than thirty (30) days following the end of the cure period. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, Amounts and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment Separation from Service, the following severance benefits (the last day of such 45-day periodcollectively, the “Release DateSeverance Benefits”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).):
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Termtime, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) ), provided the Company has not previously notified him of its intent to terminate his employment for Cause and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a8(a), 9(b8(b) or 9(c8(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a material reduction in the nature or scope of Executive’s responsibilities, duties and/or authority; provided, that a change in job position (including a change in title) shall not be deemed a “material reduction” in and of itself unless Executive’s responsibilities, duties and/or or authority from those contemplated by this Agreementare materially reduced; (B) a material reduction in Executive’s then-current Base Salary, which the then Company and Executive agree is at least 10% of Executive’s then-current Base Salary; provided, that a reduction in Base Salary shall not be “Good Reason” to the extent that the salary reduction is made as part of a broader salary reduction program of the Company Group affecting a majority of similarly situated employees; (C) causing or requiring a material reduction in the responsibilities, duties and/or authority of the supervisor to whom Executive is required to report to any person other than the CEOreport; (D) the relocation of Executive’s primary office to a location that is not within a increases Executive’s one-way commute by more than sixty (60) mile radius of the Company’s offices in McLean, Virginiamiles; or (E) any other material breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii10(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform in all material respects this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason, and Executive resigns from all positions he then-holds with the Company Group effective not later than six (6) months following the initial existence of the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d8(d), and provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definitions thereunder, a “Separation From Service”), Executive shall receive (iA) the Accrued Amounts, and and, (iiB) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five sixty (4560) day period following the date of the termination of Executive’s employment Separation From Service, the following severance benefits (the last day of such 45-day periodcollectively, the “Release DateSeverance Benefits”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).):
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” Reason (as defined below) ), provided the Company has not previously notified him in writing of its intent to terminate his employment for Cause, and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (Aa) a material reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreementand/or authority, including without limitation, Executive no longer being the sole CEO of the Company; (Bb) a change in Executive’s reporting relationship such that Executive is no longer reporting directly and solely to the Board; (c) a material reduction in the then Executive’s then-current Base Salary; (C) causing Salary or requiring Bonus Target percentage, which the Company and Executive to report to any person other than the CEO; (D) the relocation agree is at least 10% of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; then-current Base Salary or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this AgreementBonus Target; provided, that any such a reduction in Base Salary or target Bonus Target percentage shall not be “Good Reason” to the extent the reduction is made as part of a broader compensation reduction program of the Company affecting a majority of similarly situated employees; (d) Executive is required to relocate from the Minneapolis, Minnesota metropolitan area; or (e) a material breach of this Agreement by the Company. No event described in clauses (Aa) through (Ee) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the initial existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery receipt of such Notice of Termination for Good Reason the Company has failed to reasonably cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and Executive terminates his employment within thirty (ii30) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period days following the date end of the termination of Executive’s employment (the last 30 day of such 45-day cure period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).
Appears in 1 contract
Termination for Good Reason or Without Cause. At any time during the Term, (i) the Executive may terminate the Term and Executive’s 's employment hereunder for “Good Reason” (as defined below) Reason and (ii) the Company may terminate the Term and Executive’s 's employment hereunder without Cause (that is, and other than by death, Disability for death or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectivelyDisability). “"Good Reason” " shall mean the occurrence, without the Executive’s 's prior written consent, of any of the following events: (A) a significant reduction in the nature or scope of the Executive’s responsibilities, 's authority or duties or authority from those contemplated by this Agreement; provided, that Good Reason shall not be deemed to occur solely as a result of a transaction in which the Company becomes a substantially wholly-owned subsidiary of another company or division so long as the Executive's title, duties, responsibilities and authority described in Section 3(a), as they relate solely to the Company, are not reduced in any significant manner; or (B) a reduction in the then current Base Salary; (C) causing , target Annual Bonus or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor fringe benefits specific to the Company to expressly assume and agree to perform this AgreementExecutive; provided, that that, any such event described in (A) through or (EB) above shall not constitute Good Reason unless and until the Executive delivers to shall have provided the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery with notice of such Notice of Termination for Good Reason event and the Company has shall have failed to cure the circumstances giving rise to Good Reasonremedy such event within 30 days of receipt of such notice. Upon Following the termination of the Executive’s 's employment hereunder pursuant to this Section 9(d8(d), Executive shall receive (i) within five (5) days following termination, a lump sum payment of (A) any earned but unpaid Base Salary through the Accrued Amountsdate of termination, (B) any earned but unpaid Bonus for any Fiscal Year preceding the Fiscal Year in which the termination occurs, and (C) the Pro Rata Bonus plus (ii) 12 monthly payments, commencing on the first day of the month immediately following Executive's termination of employment, each of which shall be equal to one 1/12 of the sum of (A) (x) if the termination occurs at any time other than during the 12-month period following a Change in Control, zero point five times (0.5 x) the Executive's Base Salary (at the rate then in effect), and (y) if the termination occurs during the 12-month period following a Change in Control, one times (1 x) the Executive's Base Salary (at the rate then in effect) and (B) the Executive's target Annual Bonus. In addition, upon a termination of Executive's employment pursuant to this Section 8(d), (i) the unvested portion of the Initial Option Grant shall expire upon such termination and the vested portion of the Initial Option Grant shall remain exercisable for the period set forth in the Option Agreement and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in shall continue to provide health benefits to the form attached hereto as Exhibit A (Executive for the “Release”) within the fortyone-five (45) day year period following the date of Executive's termination; provided, that the Company's obligation to provide any such benefits shall cease with respect to such benefit at the time Executive becomes eligible for such benefit from another employer. To the extent that the provision of any health or other welfare benefit is not permissible after termination of Executive’s employment (under the last day terms of such 45-day periodthe benefit plans of the Company then in effect, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”)Company shall pay to Executive such amount as is necessary to provide Executive, after tax, with an amount equal to the sum cost of (x) one (1) times Executive’s then current Base Salary acquiring, for Executive and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided thathis spouse and dependents, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00any, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution ratesnon-group basis, for the Severance Period; provided thatrequired period, such coverage those health and other welfare benefits that would otherwise be lost to Executive and his spouse and dependents as a result of Executive's termination. The Executive shall terminate earlier if and have no further rights to the extent Executive becomes eligible to receive health insurance coverage any compensation (including any Base Salary or Annual Bonus) or any other benefits under a plan maintained or provided for the employees of any subsequent employerthis Agreement. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d8(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, however, that Executive shall not be entitled to any payments or benefits under participate in any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d)Company.
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Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a6(a), 9(b6(b) or 9(c6(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreement; (B) a reduction in the then current Base Salary; (C) causing or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason, and Executive’s resignation from all positions he then holds with the Company is effective not later than thirty (30) days following the end of the cure period. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d6(d), Executive shall receive (i) the Accrued Amounts, accrued Amounts and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment Separation from Service, the following severance benefits (the last day of such 45-day periodcollectively, the “Release DateSeverance Benefits”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).):
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Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s 's employment hereunder for “"Good Reason” " (as defined below) and (ii) the Company may terminate the Term and Executive’s 's employment hereunder "without Cause Cause" (that is, other than by death, Disability or for Cause, in accordance with Section 9(aSections 6(a), 9(b6(b) or 9(c6(c), respectively). “"Good Reason” " shall mean the occurrence, without Executive’s 's prior written consent, of any of the following events: (A) a reduction in any material breach by the nature Company or scope any of Executive’s responsibilitiesits subsidiaries, duties or authority from those contemplated by as the case may be, of its obligations under this Agreement; (B) a reduction in Executive's Base Salary (other than a reduction made in connection with an across-the-board proportionate reduction in the then current Base Salarybase salaries of all officers of the Company that is not more than 10%); (C) causing a material reduction by the Company in the kind or requiring level of employee benefits to which Executive is entitled immediately prior to report such reduction that is not generally applicable to any person other than all executive level employees of the CEOCompany; or (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLean, Virginia; or (E) any other breach material reduction by the Company of Executive's duties and responsibilities, including a material term change in job title or a change of this Agreementgeographic location of Executive's office of more than thirty (30) miles from the Company's present office in Rancho Cordova, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this AgreementCalifornia; provided, that any such event described in (A) through (ED) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason. Executive may also terminate the Term and his employment hereunder for "Good Reason" if the Company's Chief Executive Officer requests that Executive engage in business-related travel for a total of more than sixty (60) days in any calendar year ending during the Term, excluding any one-day business trips that do not require Executive to stay overnight, if Executive, upon receiving a request from the Chief Executive Officer for business-related travel that would result in such 60-day threshold being exceeded, delivers a written notice to the Chief Executive Officer that such request triggers Executive's right to terminate for "Good Reason" pursuant to this sentence and the Chief Executive Officer does not withdraw the request for such excess travel within five (5) business days of receiving such written notice; provided, that Executive must terminate his employment within ten (10) additional business days of the expiration of such fifth business day if such request is not withdrawn. Upon the termination of Executive’s 's employment hereunder pursuant to this Section 9(d6(d), Executive shall receive (i) the Accrued Amounts, Amounts and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment (the last day of such 45-day period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to $62,500 as severance pay (the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus"Severance Payment"), such amount to be paid in accordance with regular the Company's usual payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) three-month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to following such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employertermination. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d6(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under participate in any severance plan, policy or program of the Company GroupCompany. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonusbonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation Notwithstanding the foregoing, if all or any portion of the Release before the Release Date, the cash severance amounts payable Severance Payment or any other payments due under this paragraph Agreement following a separation from service are determined to be "nonqualified deferred compensation" subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and the Company determines that Executive is a "specified employee" as defined in Section 409A(a)(2)(B)(i) of the Code and the regulations and other guidance issued thereunder, then such payments (or the applicable portion thereof) shall commence or no earlier than the first day of the seventh month following the month in which Executive's separation from service occurs (at which time Executive shall be made on entitled to receive a lump sum payment equal to the date aggregate payments that is sixty (60) days after Executive’s termination of employment hereunder pursuant were subject to this Section 9(dsuch six-month payment delay).
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Termination for Good Reason or Without Cause. At any time during the Term, (i) Executive may terminate the Term and Executive’s employment hereunder for “Good Reason” (as defined below) and (ii) the Company may terminate the Term and Executive’s employment hereunder without Cause (that is, other than by death, Disability or for Cause, in accordance with Section 9(a), 9(b) or 9(c), respectively). “Good Reason” shall mean the occurrence, without Executive’s prior written consent, of any of the following events: (A) a reduction in the nature or scope of Executive’s responsibilities, duties or authority from those contemplated by this Agreement; (B) a reduction in the then current Base Salary; (C) causing or requiring Executive to report to any person other than the CEO; (D) the relocation of Executive’s primary office to a location that is not within a sixty (60) mile radius of the Company’s offices in McLeanTempe, VirginiaArizona; or (E) any other breach by the Company of a material term of this Agreement, including but not limited to a breach of Section 11(d)(iii) by failing to cause any successor to the Company to expressly assume and agree to perform this Agreement; provided, that any such event described in (A) through (E) above shall not constitute Good Reason unless Executive delivers to the Company a Notice of Termination for Good Reason within ninety (90) days after Executive first learns of the existence of the circumstances giving rise to Good Reason, and within thirty (30) days following the delivery of such Notice of Termination for Good Reason the Company has failed to cure the circumstances giving rise to Good Reason. Upon the termination of Executive’s employment hereunder pursuant to this Section 9(d), Executive shall receive (i) the Accrued Amounts, and (ii) subject to Executive’s execution, delivery and non-revocation of an effective release of all claims against the Company Group substantially in the form attached hereto as Exhibit A (the “Release”) within the forty-five (45) day period following the date of the termination of Executive’s employment (the last day of such 45-day period, the “Release Date”): (A) for a period of twelve (12) months following the date of termination (the “Severance Period”), an amount equal to the sum of (x) one (1) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus, such amount to be paid in accordance with regular payroll practices during the Severance Period; provided that, if such termination occurs prior to the first anniversary of the Effective Date and following the Company’s public announcement that the Board has authorized a sale of substantially all of the business or assets of the Company (including by way of a merger) for a per Share sale price that is less than $15.00, the amount to be paid to Executive over the Severance Period shall instead be equal to the sum of (x) two (2) times Executive’s then current Base Salary and (y) one (1) times Executive’s then current Target Bonus; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), then the cash severance amounts described in this paragraph shall be paid to Executive in a single lump sum and in addition to such cash severance payment, one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements; and (B) subject to Executive making a timely election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, continued health insurance coverage under the Company’s benefit plans at active employee contribution rates, for the Severance Period; provided that, such coverage shall terminate earlier if and to the extent Executive becomes eligible to receive health insurance coverage under a plan maintained or provided for the employees of any subsequent employer; provided, further that if such termination occurs within the twelve (12) month period commencing on a Change in Control (as defined in the Company’s 2009 Stock Incentive Plan), one hundred percent (100%) of Executive’s then outstanding stock options and other equity awards shall become vested and exercisable, as applicable pursuant to the terms of the applicable equity award agreements. All other benefits, if any, due Executive following a termination pursuant to this Section 9(d) shall be determined in accordance with the plans, policies and practices of the Company; provided, that Executive shall not be entitled to any payments or benefits under any severance plan, policy or program of the Company Group. Executive shall not accrue any additional compensation (including any Base Salary or Annual Bonus) or other benefits under this Agreement following such termination of employment. Assuming Executive’s execution and non-revocation of the Release before the Release Date, the cash severance amounts payable under this paragraph shall commence or be made on the date that is sixty (60) days after Executive’s termination of employment hereunder pursuant to this Section 9(d).
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