conviction of, or plea of nolo contendere by the Employee, to
a crime involving a felony of moral turpitude.
A Terminating Event shall not be deemed to have occurred pursuant to this
Section 3(a) solely as a result of the Executive being an employee of any direct
or indirect successor to the business or assets of the Company, rather than
continuing as an employee of the Company following a Change in Control.
For
purposes hereof, the Executive will be considered "Disabled" if, as a result of
the Executive's incapacity due to physical or mental illness, the Executive
shall have been absent from his duties to the Company on a full-time basis for
180 calendar days in the aggregate in any 12-month period.
(B)
TERMINATION BY THE EXECUTIVE FOR GOOD REASON.
TERMINATION BY THE
EXECUTIVE OF THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY FOR GOOD REASON.
FOR
PURPOSES OF THIS AGREEMENT, "GOOD REASON" SHALL MEAN THE OCCURRENCE OF ANY OF
THE FOLLOWING EVENTS:
(I)
A REDUCTION IN THE EMPLOYEE'S THEN-CURRENT ANNUAL BASE SALARY OR
BONUS OPPORTUNITY OR BENEFITS; OR
(II)
THE FAILURE TO PAY THE EMPLOYEE ANY PORTION OF HIS OR HER CURRENT
BASE SALARY, BONUS OR BENEFITS WITHIN TWENTY (20) DAYS OF THE DATE SUCH
COMPENSATION IS DUE, BASED UPON THE PAYMENT TERMS CURRENTLY IN EFFECT; OR
(III)
THE FAILURE OF THE COMPANY TO OBTAIN A REASONABLY SATISFACTORY
AGREEMENT FROM ANY SUCCESSOR TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT.
4.
CHANGE IN CONTROL PAYMENT.
UPON THE
EARLIER OF (1) THE OCCURRENCE OF A TERMINATING EVENT AFTER A CHANGE IN CONTROL
OR (2) 90 DAYS AFTER A CHANGE IN CONTROL, THE FOLLOWING SHALL OCCUR:
(A)
THE COMPANY SHALL PAY TO THE EXECUTIVE AN AMOUNT EQUAL TO
$120,000, PAYABLE IN ONE LUMP-SUM PAYMENT NO LATER THAN THREE DAYS FOLLOWING THE
DATE OF TERMINATION;
(B)
SUBJECT TO THE EXECUTIVE'S COPAYMENT OF PREMIUM AMOUNTS AT THE
ACTIVE EMPLOYEES' RATE, THE EXECUTIVE SHALL CONTINUE TO PARTICIPATE IN THE
COMPANY'S GROUP HEALTH AND DENTAL PROGRAM FOR SIX MONTHS; PROVIDED, HOWEVER,
THAT THE CONTINUATION OF HEALTH BENEFITS UNDER THIS SECTION SHALL REDUCE AND
COUNT AGAINST THE EXECUTIVE'S RIGHTS UNDER THE CONSOLIDATED OMNIBUS BUDGET
RECONCILIATION ACT OF 1985, AS AMENDED ("COBRA"); AND
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY APPLICABLE OPTION
AGREEMENT OR STOCK-BASED AWARD AGREEMENT, UPON THE EARLIER OF (1) THE OCCURRENCE
OF A TERMINATING EVENT AFTER A CHANGE IN CONTROL OR (2) 90 DAYS AFTER A CHANGE
IN CONTROL, ALL STOCK OPTIONS AND OTHER STOCK-BASED AWARDS GRANTED TO THE
EXECUTIVE BY THE COMPANY SHALL
3
IMMEDIATELY ACCELERATE AND BECOME EXERCISABLE OR NON-FORFEITABLE AS OF THE
EFFECTIVE DATE OF SUCH DATE REFERRED TO IN CLAUSE (1) OR (2), AS APPLICABLE, OF
THIS PARAGRAPH (C).
(D)
ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, IF AT
THE TIME OF THE EXECUTIVE'S SEPARATION FROM SERVICE WITHIN THE MEANING OF
SECTION 409A OF THE CODE, THE COMPANY DETERMINES THAT THE EXECUTIVE IS A
"SPECIFIED EMPLOYEE" WITHIN THE MEANING OF SECTION 409A(A)(2)(B)(I) OF THE
INTERNAL REVENUE CODE OF 1986,