or enter into a new arrangement with Executive, it
shall communicate, in writing, to Executive at that time. For the avoidance of
doubt, if the Closing Date does not occur, this Agreement shall be null and
void.
4.Compensation.
(a)
Base Salary. During the Term, Executive's base salary will be at a
rate of not less than $1,275,000 per annum (the "Base Salary"). Such Base Salary
shall be paid in accordance with the Company's payroll practices and policies
then in effect. The Base Salary shall be reviewed at least annually by the Board
(and/or the Compensation Committee thereof) and may be increased, but not
decreased, in its discretion, in which event any increased Base Salary shall be
deemed the Base Salary under this Agreement.
(b)
Annual Bonus. During the Term, Executive shall be entitled to
receive the following annual cash bonus payments (the "Annual Bonuses"),
commencing with the fiscal year beginning January 1, 2019:
(i)
Base EBITDA Bonus. An annual cash bonus for each fiscal year (the
"Base EBITDA Bonus") based upon the adjusted earnings before interest, taxes,
depreciation and amortization ("EBITDA") target set forth in the Board-approved
budget for the year developed in consultation with Executive (the "EBITDA
Target"). The parties shall use commercially reasonable efforts to define such
targets prior to the start of the applicable fiscal year. The target Base EBITDA
Bonus shall be one hundred fifty percent (150%) of the Base Salary (the "Target
EBITDA Bonus"). If actual EBITDA achievement for the fiscal year is below 95% of
the EBITDA Target, no Base EBITDA Bonus will be payable; if it is at least 95%
of target EBITDA, then 25% of the Target EBITDA Bonus will be payable; if it is
at least 100% of the EBITDA Target, then 100% of the Target EBITDA Bonus will be
payable; and if actual EBITDA achievement is between 95% and 100% of the EBITDA
Target, then the amount of the Base EBITDA Bonus will be determined by linear
interpolation (e.g., if actual EBITDA achievement is 97.5% of the EBITDA Target,
then 62.5% of the Target EBITDA Bonus will be payable). In the event of any
acquisition, sale or other disposition of assets or any similar corporate
transaction, the Board shall, acting reasonably and good faith, adjust the
EBITDA Target for purposes of this Section 4(b)(i) and Section 4(b)(ii) for such
fiscal year. The Base EBITDA Bonus for a fiscal year, if earned, shall be due
and payable by the Company to Executive in the year following the year for which
such Base EBITDA Bonus was earned (and in all events no later than March 15 of
such next-following year).
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(ii)
Additional EBITDA Bonus. If actual EBITDA exceeds the EBITDA Target
for a fiscal year, in addition to the Base EBITDA Bonus, Executive shall be
entitled to receive an additional cash bonus (the "Additional EBITDA Bonus") as
follows: (A) 25% of the Target EBITDA Bonus at 105% achievement of the Target
EBITDA; (B) 50% of the Target EBITDA Bonus at 110%