DOCX » Topics » 5.8 Payments upon Termination .

This excerpt taken from the DOCX 8-K filed Dec 27, 2007.

5.8 Payments upon Termination.

5.8.1 If the Company terminates the Participant’s employment or consultancy for Cause or the Participant terminates his employment other than for Good Reason, death or Disability, the Participant shall forfeit any unpaid portion of his Incentive Bonus. For purposes of this Plan, the term “Cause” shall mean:

(1) an act of willful dishonesty taken in connection with the Participant’s responsibilities as an employee and causing damage to the Company;

(2) the Participant’s commission of, or plea of nolo contendere to, a felony;

 

8


(3) the Participant’s insubordination or willful refusal to follow reasonable directives of the Board; and

(4) the Participant’s gross negligence or willful misconduct in the performance of his duties as an employee of the Company.

5.8.2 If within 18 months following the Closing Date the Company terminates the Participant’s employment or consultancy other than for Cause or the Participant terminates his employment for Good Reason (in accordance with Section 5.9 below), death or Disability, the Participant shall be entitled to receive any remaining payments under this Plan such that he receives the full amount of his Incentive Bonus within 30 days of the date of his termination. Notwithstanding the foregoing, if the Participant is a Specified Employee at the time of termination, his payment shall be delayed in accordance with Section 5.10 below.

5.9 Termination for Good Reason. The Participant may terminate his employment with the Company for Good Reason upon his giving 30 days written notice to the Company and specifying therein that he is terminating his employment as a result of any of the events described below. An event that is or would constitute Good Reason shall cease to be Good Reason if: (a) the Participant does not terminate his employment within 90 days after the event occurs; or (b) the Company reverses the action or cures the default that constitutes Good Reason within 30 days after the Participant notifies the Company in writing that Good Reason exists. For purposes of this Plan, the term “Good Reason” shall mean the occurrence of any of the following events within 18 months following the Closing Date:

5.9.1 Without the Participant’s prior written consent, a material reduction in his then current annual base salary, other than as part of across-the-board salary reductions affecting all similar executives of the acquiror and its affiliates;

5.9.2 The taking of any action by the Company that would materially diminish the aggregate value of the benefits provided to the Participant under the Participant’s medical, health, accident, disability insurance, life insurance and retirement plans in which he was participating prior to the Change in Control, other than any such reduction which (i) is required by law, (ii) implemented in connection with a general arrangement affecting all employees or affecting the group of employees (senior management) of the acquiror and its affiliates of which the Participant is a member, or (iii) generally applicable to all beneficiaries of such plans and any other plans of the same type sponsored by acquiror and/or its affiliates;

5.9.3 A material reduction in the Participant’s duties and responsibilities; provided that any reduction which may occur as a result of the Company becoming a wholly-owned private subsidiary of an acquiror shall not constitute Good Reason;

5.9.4 A relocation of the Participant’s principal place of business by more than 50 miles, unless Participant consents to such relocation; or

5.9.5 The Company or the acquirer materially breaches any provision of this Plan or the acquiror materially breaches any provision of any employment agreement entered into by the acquiror and the Particpant.

 

9


5.10 Specified Employee. Notwithstanding the foregoing, if (a) the Company terminates the Participant’s employment or consultancy other than for Cause or the Participant terminates his employment for Good Reason, (b) the Participant is a Specified Employee on the date of termination, and (c) all payments specified in Section 5.8.2 which are subject to Code Section 409A are not made by March 15 of the year immediately following the date of termination, then such amounts may be made to the extent that the amount does not exceed two times the lesser of (i) the sum of the Participant’s annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year preceding the termination, or (ii) the maximum amount ($225,000 in 2007) that may be taken into account pursuant to Section 401(a)(17) of the Code for the year in which the Participant has terminated. Any amounts exceeding such limit, may not be made before the earlier of the date which is six (6) months after the date of termination or the date of death of the Participant. Any payments that were scheduled to be paid during the six (6) month period following the Participant’s date of termination, but which were delayed pursuant to this Section 5.10, shall be paid without interest on, or as soon as administratively practicable after, the first day following the six (6) month anniversary of the Participant’s date of termination (or, if earlier, the date of the Participant’s death).

This excerpt taken from the DOCX DEFA14A filed Dec 27, 2007.

5.8 Payments upon Termination.

5.8.1 If the Company terminates the Participant’s employment or consultancy for Cause or the Participant terminates his employment other than for Good Reason, death or Disability, the Participant shall forfeit any unpaid portion of his Incentive Bonus. For purposes of this Plan, the term “Cause” shall mean:

(1) an act of willful dishonesty taken in connection with the Participant’s responsibilities as an employee and causing damage to the Company;

(2) the Participant’s commission of, or plea of nolo contendere to, a felony;

 

8


(3) the Participant’s insubordination or willful refusal to follow reasonable directives of the Board; and

(4) the Participant’s gross negligence or willful misconduct in the performance of his duties as an employee of the Company.

5.8.2 If within 18 months following the Closing Date the Company terminates the Participant’s employment or consultancy other than for Cause or the Participant terminates his employment for Good Reason (in accordance with Section 5.9 below), death or Disability, the Participant shall be entitled to receive any remaining payments under this Plan such that he receives the full amount of his Incentive Bonus within 30 days of the date of his termination. Notwithstanding the foregoing, if the Participant is a Specified Employee at the time of termination, his payment shall be delayed in accordance with Section 5.10 below.

5.9 Termination for Good Reason. The Participant may terminate his employment with the Company for Good Reason upon his giving 30 days written notice to the Company and specifying therein that he is terminating his employment as a result of any of the events described below. An event that is or would constitute Good Reason shall cease to be Good Reason if: (a) the Participant does not terminate his employment within 90 days after the event occurs; or (b) the Company reverses the action or cures the default that constitutes Good Reason within 30 days after the Participant notifies the Company in writing that Good Reason exists. For purposes of this Plan, the term “Good Reason” shall mean the occurrence of any of the following events within 18 months following the Closing Date:

5.9.1 Without the Participant’s prior written consent, a material reduction in his then current annual base salary, other than as part of across-the-board salary reductions affecting all similar executives of the acquiror and its affiliates;

5.9.2 The taking of any action by the Company that would materially diminish the aggregate value of the benefits provided to the Participant under the Participant’s medical, health, accident, disability insurance, life insurance and retirement plans in which he was participating prior to the Change in Control, other than any such reduction which (i) is required by law, (ii) implemented in connection with a general arrangement affecting all employees or affecting the group of employees (senior management) of the acquiror and its affiliates of which the Participant is a member, or (iii) generally applicable to all beneficiaries of such plans and any other plans of the same type sponsored by acquiror and/or its affiliates;

5.9.3 A material reduction in the Participant’s duties and responsibilities; provided that any reduction which may occur as a result of the Company becoming a wholly-owned private subsidiary of an acquiror shall not constitute Good Reason;

5.9.4 A relocation of the Participant’s principal place of business by more than 50 miles, unless Participant consents to such relocation; or

5.9.5 The Company or the acquirer materially breaches any provision of this Plan or the acquiror materially breaches any provision of any employment agreement entered into by the acquiror and the Particpant.

 

9


5.10 Specified Employee. Notwithstanding the foregoing, if (a) the Company terminates the Participant’s employment or consultancy other than for Cause or the Participant terminates his employment for Good Reason, (b) the Participant is a Specified Employee on the date of termination, and (c) all payments specified in Section 5.8.2 which are subject to Code Section 409A are not made by March 15 of the year immediately following the date of termination, then such amounts may be made to the extent that the amount does not exceed two times the lesser of (i) the sum of the Participant’s annualized compensation based upon the annual rate of pay for services provided to the Company for the taxable year preceding the termination, or (ii) the maximum amount ($225,000 in 2007) that may be taken into account pursuant to Section 401(a)(17) of the Code for the year in which the Participant has terminated. Any amounts exceeding such limit, may not be made before the earlier of the date which is six (6) months after the date of termination or the date of death of the Participant. Any payments that were scheduled to be paid during the six (6) month period following the Participant’s date of termination, but which were delayed pursuant to this Section 5.10, shall be paid without interest on, or as soon as administratively practicable after, the first day following the six (6) month anniversary of the Participant’s date of termination (or, if earlier, the date of the Participant’s death).

This excerpt taken from the DOCX DEF 14A filed Jun 29, 2007.

a) Payments Made Upon Termination

Regardless of the manner in which a Named Executive Officer’s employment terminates, he will be entitled to receive amounts earned during his term of employment. Such amounts include:

 

   

The portion of his then current annual base salary which has accrued through the date of his termination,

 

   

Vested stock options and restricted stock

 

   

Payment for unused vacation

 

   

Unreimbursed business expenses

This excerpt taken from the DOCX 10-K filed Apr 30, 2007.

a) Payments Made Upon Termination

Regardless of the manner in which a Named Executive Officer’s employment terminates, he will be entitled to receive amounts earned during his term of employment. Such amounts include:

 

   

The portion of his then current annual base salary which has accrued through the date of his termination,

 

   

Vested stock options and restricted stock

 

   

Payment for unused vacation

 

   

Unreimbursed business expenses

These excerpts taken from the DOCX 8-K filed Nov 14, 2005.

6.6 Payments Upon Termination.

 

(a) If, during the term of this Agreement, Executive’s employment is terminated for any reason, Executive shall receive the following compensation:

 

(i) the portion of his then current Annual Base Salary which has accrued through his date of termination;

 

-3-


(ii) any vested bonus payments, stock options or restricted stock to which Executive is entitled as of the date of termination pursuant to this Agreement or any plan in which he is then participating, provided the payment thereof is not contingent or conditional on Executive’s continued employment with the Company or the satisfaction of any other condition which has not been satisfied; and

 

(iii) any payments for unused vacation and reimbursement of expenses, which are due, accrued or payable as of the date of Executive’s termination.

 

(b) If Executive’s employment is terminated by the Company without Cause, but not in connection with a Change in Control (as defined below), then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following payments provided he signs and complies with a release of claims in a form acceptable to the Company: his then-current Annual Base Salary for a six (6)-month period, payable in accordance with the Company’s normal payroll procedures and policies. Additionally, Executive will receive continuation of health benefits for six (6) months.

 

(c) If, either 30 days before or within 18 months following a Change in Control (as defined below), the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following amount provided he signs and complies with a release of claims in a form acceptable to the Company: a lump sum amount equal to 1.5 times the sum of Executive’s Annual Base Salary. Additionally, Executive will receive continuation of health benefits for eighteen (18) months. If Executive receives payment under this Section 6.6(c), then he shall not receive any payments under Section 6.6(b) above.

 

As used herein, Change in Control shall mean:

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”)) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities;

 

(ii) The approval by stockholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or

 

-4-


(iii) The approval by the stockholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of at least 50% or more of the Company’s assets determined at their fair market value.

 

(d) If Executive’s employment terminates for (i) Cause, (ii) as a result of death or his becoming permanently disabled (as defined in Section 6.3), or (iii) due to voluntary resignation for any reason other than for Good Reason either 30 days before or within 18 months following a Change in Control, then Executive shall be entitled only to the compensation set forth in Section 6.6(a).

 

(e) Notwithstanding anything herein to the contrary, to the extent that the Company in good faith determines that any payment pursuant to this Section 6.6 provides for a “deferral of compensation” under Section 409A of the Internal Revenue Code, as amended (“Section 409A”), no amounts shall be payable to Executive pursuant to this Section 6.6 prior to the earlier of (i) Executive’s death or “disability” (within the meaning of Section 409A(a)(2)(C)), or (ii) the date that is six months following the date of Executive’s “separation from service” with the Company (within the meaning of Section 409A).

 

7. Confidentiality. Executive acknowledges that he currently possesses or will acquire secret, confidential, or proprietary information or trade secrets concerning the operations, customers, future plans and business methods of the Company. Executive reaffirms his obligation to abide by the terms of any and all Confidentiality Agreements between himself and the Company.

 

7.1 Promise Not to Solicit. While this Agreement is in effect and for 12 months after its termination, Executive will not solicit or attempt to solicit (or assist others to solicit) for employment any person who is, or within the preceding 12 months was, an employee of the Company.

 

7.2 Enforcement of this Section. This Section 7 shall survive the termination of this Agreement for any reason. Executive acknowledges that (i) his services are of a special, unique and extraordinary character, and it would be very difficult if not impossible to replace them, (ii) this Section’s terms are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s restrictions will not prevent Executive from earning or seeking a livelihood, (iv) this Section’s restrictions shall apply wherever permitted by law, and (v) Executive’s violation of any of this Section’s terms would irreparably harm the Company. Accordingly, Executive agrees that, if he violates any of the provisions of this Section 7, or his Confidentiality Agreement, then the Company shall be entitled to, in addition to other remedies available to it, seek and obtain an injunction restraining him from committing or continuing any such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking.

 

8. Restricted Stock and Stock Options. This Agreement does not incorporate, supercede, nor any way affect any Stock Incentive Plan, restricted stock agreements or any stock option grants, all of which are governed by separate documents.

 

-5-


6.6 Payments Upon Termination.

 

(a) If, during the term of this Agreement, Executive’s employment is terminated for any reason, Executive shall receive the following compensation:

 

(i) the portion of his then current Annual Base Salary which has accrued through his date of termination;

 

-3-


(ii) any vested bonus payments, stock options or restricted stock to which Executive is entitled as of the date of termination pursuant to this Agreement or any plan in which he is then participating, provided the payment thereof is not contingent or conditional on Executive’s continued employment with the Company or the satisfaction of any other condition which has not been satisfied; and

 

(iii) any payments for unused vacation and reimbursement of expenses, which are due, accrued or payable as of the date of Executive’s termination.

 

(b) If Executive’s employment is terminated by the Company without Cause, but not in connection with a Change in Control (as defined below), then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following payments provided he signs and complies with a release of claims in a form acceptable to the Company: his then-current Annual Base Salary for a six (6)-month period, payable in accordance with the Company’s normal payroll procedures and policies. Additionally, Executive will receive continuation of health benefits for six (6) months.

 

(c) If, either 30 days before or within 18 months following a Change in Control (as defined below), the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following amount provided he signs and complies with a release of claims in a form acceptable to the Company: a lump sum amount equal to 1.5 times the sum of Executive’s Annual Base Salary. Additionally, Executive will receive continuation of health benefits for eighteen (18) months. If Executive receives payment under this Section 6.6(c), then he shall not receive any payments under Section 6.6(b) above.

 

As used herein, Change in Control shall mean:

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”)) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities;

 

(ii) The approval by stockholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or

 

-4-


(iii) The approval by the stockholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of at least 50% or more of the Company’s assets determined at their fair market value.

 

(d) If Executive’s employment terminates for (i) Cause, (ii) as a result of death or his becoming permanently disabled (as defined in Section 6.3), or (iii) due to voluntary resignation for any reason other than for Good Reason either 30 days before or within 18 months following a Change in Control, then Executive shall be entitled only to the compensation set forth in Section 6.6(a).

 

(e) Notwithstanding anything herein to the contrary, to the extent that the Company in good faith determines that any payment pursuant to this Section 6.6 provides for a “deferral of compensation” under Section 409A of the Internal Revenue Code, as amended (“Section 409A”), no amounts shall be payable to Executive pursuant to this Section 6.6 prior to the earlier of (i) Executive’s death or “disability” (within the meaning of Section 409A(a)(2)(C)), or (ii) the date that is six months following the date of Executive’s “separation from service” with the Company (within the meaning of Section 409A).

 

7. Confidentiality. Executive acknowledges that he currently possesses or will acquire secret, confidential, or proprietary information or trade secrets concerning the operations, customers, future plans and business methods of the Company. Executive reaffirms his obligation to abide by the terms of any and all Confidentiality Agreements between himself and the Company.

 

7.1 Promise Not to Solicit. While this Agreement is in effect and for 12 months after its termination, Executive will not solicit or attempt to solicit (or assist others to solicit) for employment any person who is, or within the preceding 12 months was, an employee of the Company.

 

7.2 Enforcement of this Section. This Section 7 shall survive the termination of this Agreement for any reason. Executive acknowledges that (i) his services are of a special, unique and extraordinary character, and it would be very difficult if not impossible to replace them, (ii) this Section’s terms are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s restrictions will not prevent Executive from earning or seeking a livelihood, (iv) this Section’s restrictions shall apply wherever permitted by law, and (v) Executive’s violation of any of this Section’s terms would irreparably harm the Company. Accordingly, Executive agrees that, if he violates any of the provisions of this Section 7, or his Confidentiality Agreement, then the Company shall be entitled to, in addition to other remedies available to it, seek and obtain an injunction restraining him from committing or continuing any such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking.

 

8. Restricted Stock and Stock Options. This Agreement does not incorporate, supercede, nor any way affect any Stock Incentive Plan, restricted stock agreements or any stock option grants, all of which are governed by separate documents.

 

-5-


6.6 Payments Upon Termination.

 

(a) If, during the term of this Agreement, Executive’s employment is terminated for any reason, Executive shall receive the following compensation:

 

(i) the portion of his then current Annual Base Salary which has accrued through his date of termination;

 

(ii) any vested bonus payments, stock options or restricted stock to which Executive is entitled as of the date of termination pursuant to this Agreement or any plan in which he is then participating, provided the payment thereof is not contingent or conditional on Executive’s continued employment with the Company or the satisfaction of any other condition which has not been satisfied; and

 

(iii) any payments for unused vacation and reimbursement of expenses, which are due, accrued or payable as of the date of Executive’s termination.

 

(b) If Executive’s employment is terminated by the Company without Cause, but not in connection with a Change in Control (as defined below), then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following payments provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): his then-current Annual Base Salary for a six (6)-month period, payable in accordance with the Company’s normal payroll procedures and policies. Additionally, Executive will receive continuation of health benefits for six (6) months.

 

(c) If, either 30 days before or within 18 months following a Change in Control (as defined below), the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following amount provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): a lump sum amount equal to 1.5 times the sum of Executive’s Annual Base Salary and prorated targeted annual bonus. Additionally, Executive will receive continuation of health benefits for eighteen (18) months. If Executive receives payment under this Section 6.6(c), then he shall not receive any payments under Section 6.6(b), above.

 

As used herein, Change in Control shall mean:

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”)) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities;

 

-4-


(ii) The approval by stockholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or

 

(iii) The approval by the stockholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of at least 50% or more of the Company’s assets determined at their fair market value.

 

(d) If Executive’s employment terminates for (i) Cause, (ii) as a result of death or his becoming permanently disabled (as defined in Section 6.3), or (iii) due to voluntary resignation for any reason other than for Good Reason either 30 days before or within 18 months following a Change in Control, then Executive shall be entitled only to the compensation set forth in Section 6.6(a).

 

(e) Notwithstanding anything herein to the contrary, to the extent that the Company in good faith determines that any payment pursuant to this Section 6.6 provides for a “deferral of compensation” under Section 409A of the Internal Revenue Code, as amended (“Section 409A”), no amounts shall be payable to Executive pursuant to this Section 6.6 prior to the earlier of (i) Executive’s death or “disability” (within the meaning of Section 409A(a)(2)(C)), or (ii) the date that is six months following the date of Executive’s “separation from service” with the Company (within the meaning of Section 409A).

 

7. Confidentiality. Executive acknowledges that he currently possesses or will acquire secret, confidential, or proprietary information or trade secrets concerning the operations, customers, future plans and business methods of the Company. Executive reaffirms his obligation to abide by the terms of any and all Confidentiality Agreements between himself and the Company.

 

7.1 Non-Competition Agreement. Executive reaffirms his obligation to abide by the terms of his Non-Competition Agreement dated July 20, 2004.

 

7.2 Promise Not to Solicit. Following expiration of his Non-Competition Agreement, Executive agrees that, while this Agreement is in effect and for 12 months after its termination, he will not solicit or attempt to solicit (or assist others to solicit) for employment any person who is, or within the preceding 12 months was, an employee of the Company.

 

7.3 Enforcement of this Section. This Section 7 shall survive the termination of this Agreement for any reason. Executive acknowledges that (i) his services are of a special, unique and extraordinary character, and it would be very difficult if not impossible to replace them, (ii) this Section’s terms are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s restrictions will not prevent Executive from earning or seeking a

 

-5-


livelihood, (iv) this Section’s restrictions shall apply wherever permitted by law, and (v) Executive’s violation of any of this Section’s terms would irreparably harm the Company. Accordingly, Executive agrees that, if he violates any of the provisions of this Section 7, or his Confidentiality Agreement, then the Company shall be entitled to, in addition to other remedies available to it, seek and obtain an injunction restraining him from committing or continuing any such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking.

 

8. Restricted Stock and Stock Options. This Agreement does not incorporate, supercede, nor any way affect any Stock Incentive Plan, restricted stock agreements or any stock option grants, all of which are governed by separate documents.

 

6.6 Payments Upon Termination.

 

(a) If, during the term of this Agreement, Executive’s employment is terminated for any reason, Executive shall receive the following compensation:

 

(i) the portion of his then current Annual Base Salary which has accrued through his date of termination;

 

(ii) any vested bonus payments, stock options or restricted stock to which Executive is entitled as of the date of termination pursuant to this Agreement or any plan in which he is then participating, provided the payment thereof is not contingent or conditional on Executive’s continued employment with the Company or the satisfaction of any other condition which has not been satisfied; and

 

(iii) any payments for unused vacation and reimbursement of expenses, which are due, accrued or payable as of the date of Executive’s termination.

 

(b) If Executive’s employment is terminated by the Company without Cause, but not in connection with a Change in Control (as defined below), then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following payments provided he signs and complies with a release of claims in a form acceptable to the Company: his then-current Annual Base Salary and target bonus for a twelve (12)-month period, payable in accordance with the Company’s normal payroll procedures and policies. Additionally, Executive will receive continuation of health benefits for twelve (12) months.

 

(c) If, either 30 days before or within 18 months following a Change in Control (as defined below), the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following amount provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): a lump sum amount equal to two (2) times the sum of Executive’s Annual Base Salary and prorated targeted annual bonus. Additionally, Executive will receive continuation of health benefits for twenty-four (24) months. If Executive receives payment under this Section 6.6(c), then he shall not receive any payments under Section 6.6(b), above.

 

As used herein, Change in Control shall mean:

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities;

 

(ii) The approval by stockholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or

 

-4-


consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or

 

(iii) The approval by the stockholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of at least 50% or more of the Company’s assets determined at their fair market value.

 

(d) If Executive’s employment terminates for (i) Cause, (ii) as a result of death or his becoming permanently disabled (as defined in Section 6.3), or (iii) due to voluntary resignation for any reason other than for Good Reason either 30 days before or within 18 months following a Change in Control, then Executive shall be entitled only to the compensation set forth in Section 6.6(a).

 

(e) Notwithstanding anything herein to the contrary, to the extent that the Company in good faith determines that any payment pursuant to this Section 6.6 provides for a “deferral of compensation” under Section 409A of the Internal Revenue Code, as amended (“Section 409A”), no amounts shall be payable to Executive pursuant to this Section 6.6 prior to the earlier of (i) Executive’s death or “disability” (within the meaning of Section 409A(a)(2)(C)), or (ii) the date that is six months following the date of Executive’s “separation from service” with the Company (within the meaning of Section 409A).

 

7. Confidentiality. Executive acknowledges that he currently possesses or will acquire secret, confidential, or proprietary information or trade secrets concerning the operations, customers, future plans and business methods of the Company. Executive reaffirms his obligation to abide by the terms of any and all Confidentiality Agreements between himself and the Company.

 

7.1 Promise Not to Solicit. While this Agreement is in effect and for 12 months after its termination, Executive will not solicit or attempt to solicit (or assist others to solicit) for employment any person who is, or within the preceding 12 months was, an employee of the Company.

 

7.2 Enforcement of this Section. This Section 7 shall survive the termination of this Agreement for any reason. Executive acknowledges that (i) his services are of a special, unique and extraordinary character, and it would be very difficult if not impossible to replace them, (ii) this Section’s terms are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s restrictions will not prevent Executive from earning or seeking a livelihood, (iv) this Section’s restrictions shall apply wherever permitted by law, and (v) Executive’s violation of any of this Section’s terms would irreparably harm the Company. Accordingly, Executive agrees that, if he violates any of the provisions of this Section 7, or his Confidentiality Agreement, then the Company shall be entitled to, in addition to other remedies available to it, seek and obtain an injunction restraining him from committing or continuing any

 

-5-


such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking.

 

8. Restricted Stock and Stock Options. This Agreement does not incorporate, supercede, nor any way affect any Stock Incentive Plan, restricted stock agreements or any stock option grants, all of which are governed by separate documents.

 

6.6 Payments Upon Termination.

 

(a) If, during the term of this Agreement, Executive’s employment is terminated for any reason, Executive shall receive the following compensation:

 

(i) the portion of his then current Annual Base Salary which has accrued through his date of termination;

 

(ii) any vested bonus payments, stock options or restricted stock to which Executive is entitled as of the date of termination pursuant to this Agreement or any plan in which he is then participating, provided the payment thereof is not contingent or conditional on Executive’s continued employment with the Company or the satisfaction of any other condition which has not been satisfied; and

 

(iii) any payments for unused vacation and reimbursement of expenses, which are due, accrued or payable as of the date of Executive’s termination.

 

(b) If Executive’s employment is terminated by the Company without Cause, but not in connection with a Change in Control (as defined below), then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following payments provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): his then-current Annual Base Salary for a six (6)-month period, payable in accordance with the Company’s normal payroll procedures and policies. Additionally, Executive will receive continuation of health benefits for six (6) months.

 

(c) If, either 30 days before or within 18 months following a Change in Control (as defined below), the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following amount provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): a lump sum amount equal to 1.5 times the sum of Executive’s Annual Base Salary and prorated targeted annual bonus. Additionally, Executive will receive continuation of health benefits for eighteen (18) months. If Executive receives payment under this Section 6.6(c), then he shall not receive any payments under Section 6.6(b), above.

 

As used herein, Change in Control shall mean:

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”)) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities;

 

-4-


(ii) The approval by stockholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or

 

(iii) The approval by the stockholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of at least 50% or more of the Company’s assets determined at their fair market value.

 

(d) If Executive’s employment terminates for (i) Cause, (ii) as a result of death or his becoming permanently disabled (as defined in Section 6.3), or (iii) due to voluntary resignation for any reason other than for Good Reason either 30 days before or within 18 months following a Change in Control, then Executive shall be entitled only to the compensation set forth in Section 6.6(a).

 

(e) Notwithstanding anything herein to the contrary, to the extent that the Company in good faith determines that any payment pursuant to this Section 6.6 provides for a “deferral of compensation” under Section 409A of the Internal Revenue Code, as amended (“Section 409A”), no amounts shall be payable to Executive pursuant to this Section 6.6 prior to the earlier of (i) Executive’s death or “disability” (within the meaning of Section 409A(a)(2)(C)), or (ii) the date that is six months following the date of Executive’s “separation from service” with the Company (within the meaning of Section 409A).

 

7. Confidentiality. Executive acknowledges that he currently possesses or will acquire secret, confidential, or proprietary information or trade secrets concerning the operations, customers, future plans and business methods of the Company. Executive reaffirms his obligation to abide by the terms of any and all Confidentiality Agreements between himself and the Company.

 

7.1 Non-Competition Agreement. Executive reaffirms his obligation to abide by the terms of his Non-Competition Agreement dated July 20, 2004.

 

7.2 Promise Not to Solicit. Following expiration of his Non-Competition Agreement, Executive agrees that while this Agreement is in effect and for 12 months after its termination, he will not solicit or attempt to solicit (or assist others to solicit) for employment any person who is, or within the preceding 12 months was, an employee of the Company.

 

7.3 Enforcement of this Section. This Section 7 shall survive the termination of this Agreement for any reason. Executive acknowledges that (i) his services are of a special, unique and extraordinary character, and it would be very difficult if not impossible to replace them, (ii) this Section’s terms are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s restrictions will not prevent Executive from earning or seeking a

 

-5-


livelihood, (iv) this Section’s restrictions shall apply wherever permitted by law, and (v) Executive’s violation of any of this Section’s terms would irreparably harm the Company. Accordingly, Executive agrees that, if he violates any of the provisions of this Section 7, or his Confidentiality Agreement, then the Company shall be entitled to, in addition to other remedies available to it, seek and obtain an injunction restraining him from committing or continuing any such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking.

 

8. Restricted Stock and Stock Options. This Agreement does not incorporate, supercede, nor any way affect any Stock Incentive Plan, restricted stock agreements or any stock option grants, all of which are governed by separate documents.

 

6.6 Payments Upon Termination.

 

(a) If, during the term of this Agreement, Executive’s employment is terminated for any reason, Executive shall receive the following compensation:

 

(i) the portion of his then current Annual Base Salary which has accrued through his date of termination;

 

(ii) any vested bonus payments, stock options or restricted stock to which Executive is entitled as of the date of termination pursuant to this Agreement or any plan in which he is then participating, provided the payment thereof is not contingent or conditional on Executive’s continued employment with the Company or the satisfaction of any other condition which has not been satisfied; and

 

(iii) any payments for unused vacation and reimbursement of expenses, which are due, accrued or payable as of the date of Executive’s termination.

 

(b) If Executive’s employment is terminated by the Company without Cause, but not in connection with a Change in Control (as defined below), then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following payments provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): his then-current Annual Base Salary for a six (6)-month period, payable in accordance with the Company’s normal payroll procedures and policies. Additionally, Executive will receive continuation of health benefits for six (6) months.

 

(c) If, either 30 days before or within 18 months following a Change in Control (as defined below), the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, then the Company shall pay to Executive, in addition to the amounts set forth in Section 6.6(a), the following amount provided he (i) signs and complies with a release of claims in a form acceptable to the Company, and (ii) complies with the terms of his Non-Competition Agreement (dated July 20, 2004): a lump sum amount equal to 1.5 times the sum of Executive’s Annual Base Salary and prorated targeted annual bonus. Additionally, Executive will receive continuation of health benefits for eighteen (18) months. If Executive receives payment under this Section 6.6(c), then he shall not receive any payments under Section 6.6(b), above.

 

As used herein, Change in Control shall mean:

 

(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (“Exchange Act”)) becoming the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding voting securities;

 

-4-


(ii) The approval by stockholders of the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) at least 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or

 

(iii) The approval by the stockholders of the Company of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of at least 50% or more of the Company’s assets determined at their fair market value.

 

(d) If Executive’s employment terminates for (i) Cause, (ii) as a result of death or his becoming permanently disabled (as defined in Section 6.3), or (iii) due to voluntary resignation for any reason other than for Good Reason either 30 days before or within 18 months following a Change in Control, then Executive shall be entitled only to the compensation set forth in Section 6.6(a).

 

(e) Notwithstanding anything herein to the contrary, to the extent that the Company in good faith determines that any payment pursuant to this Section 6.6 provides for a “deferral of compensation” under Section 409A of the Internal Revenue Code, as amended (“Section 409A”), no amounts shall be payable to Executive pursuant to this Section 6.6 prior to the earlier of (i) Executive’s death or “disability” (within the meaning of Section 409A(a)(2)(C)), or (ii) the date that is six months following the date of Executive’s “separation from service” with the Company (within the meaning of Section 409A).

 

7. Confidentiality. Executive acknowledges that he currently possesses or will acquire secret, confidential, or proprietary information or trade secrets concerning the operations, customers, future plans and business methods of the Company. Executive reaffirms his obligation to abide by the terms of any and all Confidentiality Agreements between himself and the Company.

 

7.1 Non-Competition Agreement. Executive reaffirms his obligation to abide by the terms of his Non-Competition Agreement dated July 20, 2004.

 

7.2 Promise Not to Solicit. Following expiration of his Non-Competition Agreement, Executive agrees that, while this Agreement is in effect and for 12 months after its termination, he will not solicit or attempt to solicit (or assist others to solicit) for employment any person who is, or within the preceding 12 months was, an employee of the Company.

 

7.3 Enforcement of this Section. This Section 7 shall survive the termination of this Agreement for any reason. Executive acknowledges that (i) his services are of a special, unique and extraordinary character, and it would be very difficult if not impossible to replace them, (ii) this Section’s terms are reasonable and necessary to protect the Company’s legitimate interest, (iii) this Section’s restrictions will not prevent Executive from earning or seeking a

 

-5-


livelihood, (iv) this Section’s restrictions shall apply wherever permitted by law, and (v) Executive’s violation of any of this Section’s terms would irreparably harm the Company. Accordingly, Executive agrees that, if he violates any of the provisions of this Section 7, or his Confidentiality Agreement, then the Company shall be entitled to, in addition to other remedies available to it, seek and obtain an injunction restraining him from committing or continuing any such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking.

 

8. Restricted Stock and Stock Options. This Agreement does not incorporate, supercede, nor any way affect any Stock Incentive Plan, restricted stock agreements or any stock option grants, all of which are governed by separate documents.

 

"5.8 Payments upon Termination ." elsewhere:

Clarient (CLRT)
Dionex (DNEX)
En Pointe Technologies (ENPT)
Wikinvest © 2006, 2007, 2008, 2009, 2010, 2011, 2012. Use of this site is subject to express Terms of Service, Privacy Policy, and Disclaimer. By continuing past this page, you agree to abide by these terms. Any information provided by Wikinvest, including but not limited to company data, competitors, business analysis, market share, sales revenues and other operating metrics, earnings call analysis, conference call transcripts, industry information, or price targets should not be construed as research, trading tips or recommendations, or investment advice and is provided with no warrants as to its accuracy. Stock market data, including US and International equity symbols, stock quotes, share prices, earnings ratios, and other fundamental data is provided by data partners. Stock market quotes delayed at least 15 minutes for NASDAQ, 20 mins for NYSE and AMEX. Market data by Xignite. See data providers for more details. Company names, products, services and branding cited herein may be trademarks or registered trademarks of their respective owners. The use of trademarks or service marks of another is not a representation that the other is affiliated with, sponsors, is sponsored by, endorses, or is endorsed by Wikinvest.
Powered by MediaWiki