AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

corporate, civic, charitable and industry boards or committees.  Notwithstanding the foregoing, Executive shall only serve on corporate boards of directors if approved in advance by the Board.

 

3.             Base Salary. During the Employment Term, the Company shall pay Executive a base salary at the annual rate of not less than $550,000.  Base salary shall be payable in accordance with the usual payroll practices of the Company.  Executive’s base salary shall be subject to annual review by the Board or the Compensation Committee during the Employment Term and may be increased, but not decreased, from time to time by the Board or the Compensation Committee.  The base salary as determined as aforesaid from time to time shall constitute “Base Salary” for purposes of this Agreement.

 

4.             Incentive Compensation.  (a)  Bonus.  Executive shall be eligible to participate in any annual bonus plan the Company may implement at any time during Executive’s Employment Term for senior executives at a level commensurate with his position.

 

(b)           Long Term Compensation.  For each fiscal year or portion thereof during the Employment Term, Executive shall be eligible to participate in any long-term incentive compensation plan generally made available to senior executives of the Company at a level commensurate with his position in accordance with and subject to the terms of such plan.

 

(c)           May 25, 2001 Stock Option Grant.  On May 25, 2001, Executive was granted by the Company, pursuant to the Company’s 1999 Omnibus Plan, as amended (the “1999 Plan”) stock options to purchase 266,666 (after giving effect to the Company’s June 2003 one-for-six reverse stock split) shares of the Company’s issued and outstanding common stock (the “Common Stock”), at an exercise price per share of $30.66 (the “May 2001 Stock Options”).  As of the date hereof, the May 2001 Stock Options are fully vested and exercisable.  The May 2001 Stock Options shall expire on the earlier of (i) May, 25, 2011 or (ii)(A) eighteen (18) months after any termination of employment if such termination is as of the result of Executive’s death, Termination for Disability, Termination without Cause, Termination for Good Reason or non-extension of the Employment Term in accordance with Section 1 hereof as a result of notice from the Company, and (B) ninety (90) days after such termination if such termination is a result of Executive’s Termination for Cause, voluntary Termination by Executive without Good Reason, or non-extension of the Employment Term in accordance with Section 1 hereof as a result of notice by Executive.

 

(d)           Other Compensation.  The Company may, upon recommendation of the Compensation Committee, award to Executive such other bonuses and compensation as it deems appropriate and reasonable.

 

5.             [Intentionally Deleted.]

 

6.             Employee Benefits and Vacation.  (a)  During the Employment Term, Executive shall be entitled to participate in all benefit plans and arrangements and fringe benefits and perquisite programs generally provided to comparable senior executives of the Company.

 

(b)           During the Employment Term, Executive shall be entitled to vacation each year in accordance with the Company’s policies in effect from time to time, but in no event less than five (5) weeks paid vacation per calendar year.  Executive shall also be entitled to such periods of sick leave as is customarily provided by the Company for its senior executive employees.

 

7.             Business Expenses.  The Company shall reimburse Executive for the travel, entertainment and other business expenses incurred by Executive in the performance of his duties hereunder, in accordance with the Company’s policies as in effect from time to time; provided, however, that such expenses must be paid no later than the last day of the calendar year following the calendar year in which such expenses were incurred and further provided that in no event will the amount of expenses so reimbursed in one taxable year affect the amount of expenses eligible for reimbursement in any other taxable year.

 

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8.             Termination.  (a)  The employment of Executive under this Agreement shall terminate upon the earliest to occur of any of the following events:

 

      (i)      the death of Executive;

 

     (ii)                   the termination of Executive’s employment by the Company due to Executive’s Disability pursuant to Section 8(b) hereof;

 

    (iii)      the termination of Executive’s employment by Executive for Good Reason pursuant to Section 8(c) hereof;

 

    (iv)      the termination of Executive’s employment by the Company without Cause;

 

     (v)      the termination of employment by Executive without Good Reason upon sixty (60) days prior written notice; or

 

    (vi)      the termination of Executive’s employment by the Company for Cause pursuant to Section 8(e).

 

(b)           Disability.  If by reason of the same or related physical or mental illness or incapacity, Executive is unable to carry out his material duties pursuant to this Agreement for more than six (6) consecutive months, the Company may terminate Executive’s employment for disability (“Disability”).  Such termination shall be upon thirty (30) days written notice by a Notice of Disability Termination, at any time thereafter while Executive consecutively continues to be unable to carry out his duties as a result of the same or related physical or mental illness or incapacity.  A Termination for Disability hereunder shall not be effective if Executive returns to the full-time performance of his material duties within such thirty (30) day period.

 

(c)           Termination for Good Reason.  A Termination for Good Reason means a termination by Executive by written notice given within ninety (90) days after the occurrence of the Good Reason event, unless such circumstances are fully corrected prior to the date of termination specified in the Notice of Termination for Good Reason (as defined in Section 8(d) hereof).  For purposes of this Agreement, “Good Reason” shall mean the occurrence or failure to cause the occurrence, as the case may be, without Executive’s express written consent, of any of the following circumstances:  (i) any material diminution of Executive’s positions, duties or responsibilities hereunder (except in each case in connection with the termination of Executive’s employment for Cause or Disability or as a result of Executive’s death, or temporarily as a result of Executive’s illness or other absence), or, the assignment to Executive of duties or responsibilities that are inconsistent with Executive’s then position; (ii) removal of, or the non-reelection of, Executive from officer positions with the Company specified herein without election to a higher position or removal of Executive from any of his then officer positions; (iii) a relocation of the Company’s executive office in Connecticut  to a location more than thirty-five (35) miles from its current location or more than thirty-five (35) miles further from Executive’s residence at the time of relocation; (iv) a failure by the Company (A) to continue any bonus plan, program or arrangement in which Executive is entitled to participate (the “Bonus Plans”), provided that any such Bonus Plans may be modified at the Company’s discretion from time to time but shall be deemed terminated if (x) any such plan does not remain substantially in the form in effect prior to such modification and (y) if plans providing Executive with substantially similar benefits are not substituted therefor (“Substitute Plans”), or (B) to continue Executive as a participant in the Bonus Plans and Substitute Plans on at least the same basis as to potential amount of the bonus as Executive participated in prior to any change in such plans or awards, in accordance with the Bonus Plans and the Substitute Plans; (v) any material breach by the Company of any provision of this Agreement, including, without limitation, Section 13 hereof; or (vi) failure of any successor to the Company (whether direct or indirect and whether by merger, acquisition, consolidation or otherwise) to assume in a writing delivered to Executive upon the assignee becoming such, the obligations of the Company hereunder.

 

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(d)           Notice of Termination for Good Reason.  A Notice of Termination for Good Reason shall mean a notice that shall indicate the specific termination provision in Section 8(c) relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for Termination for Good Reason.  The failure by Executive to set forth in the Notice of Termination for Good Reason any facts or circumstances which contribute to the showing of Good Reason shall not waive any right of Executive hereunder or preclude Executive from asserting such fact or circumstance in enforcing his rights hereunder.  The Notice of Termination for Good Reason shall provide for a date of termination not less than ten (10) nor more than sixty (60) days after the date such Notice of Termination for Good Reason is given, provided that in the case of the events set forth in Sections 8(c)(i) or (ii), the date may be five (5) days after the giving of such notice.

 

(e)           Cause.  Subject to the notification provisions of Section 8(f) below, Executive’s employment hereunder may be terminated by the Company for Cause.  For purposes of this Agreement, the term “Cause” shall be limited to (i) willful misconduct by Executive with regard to the Company which has a material adverse effect on the Company; (ii) the willful refusal of Executive to attempt to follow the proper written direction of the Board, provided that the foregoing refusal shall not be “Cause” if Executive in good faith believes that such direction is illegal, unethical or immoral and promptly so notifies the Board; (iii) substantial and continuing willful refusal by Executive to attempt to perform the duties required of him hereunder (other than any such failure resulting from incapacity due to physical or mental illness) after a written demand for substantial performance is delivered to Executive by the Board which specifically identifies the manner in which it is believed that Executive has substantially and continually refused to attempt to perform his duties hereunder; or (iv) Executive being convicted of a felony (other than a felony involving a traffic violation or as a result of vicarious liability).  For purposes of this paragraph, no act, or failure to act, on Executive’s part shall be considered “willful” unless done or omitted to be done, by him not in good faith and without reasonable belief that his action or omission was in the best interests of the Company.  A notice by the Company of a non-renewal of the Employment Term pursuant to Section 1 hereof shall be deemed an involuntary termination of Executive by the Company without Cause as of the end of the then Employment Term, but Executive may terminate at any time after the receipt of such notice and shall be treated as if he was terminated without Cause as of such date.

 

(f)            Notice of Termination for Cause.  A Notice of Termination for Cause shall mean a notice that shall indicate the specific termination provision in Section 8(e) relied upon and shall set forth in reasonable detail the facts and circumstances which provide for a basis for Termination for Cause.  Further, a Notification for Cause shall be required to include a copy of a resolution duly adopted by at least two-thirds (2/3) of the entire membership of the Board at a meeting of the Board which was called for the purpose of considering such termination and which Executive and his representative had the right to attend and address the Board, finding that, in the good faith of the Board, Executive engaged in conduct set forth in the definition of Cause herein and specifying the particulars thereof in reasonable detail.  The date of termination for a Termination for Cause shall be the date indicated in the Notice of Termination.  Any purported Termination for Cause which is held by a court not to have been based on the grounds set forth in this Agreement or not to have followed the procedures set forth in this Agreement shall be deemed a Termination by the Company without Cause.

 

9.             Consequences of Termination of Employment.

 

(a)           Death.  If, Executive’s employment is terminated by reason of Executive’s death, the employment period under this Agreement shall terminate without further obligations to Executive’s legal representatives under this Agreement except for:  (i) any compensation earned but not yet paid, including and without limitation, any bonus if declared or earned but not yet paid for a completed fiscal year, any amount of Base Salary earned but unpaid, any accrued vacation pay payable pursuant to the Company’s policies, and any unreimbursed business expenses payable pursuant to Section 7 (collectively

 

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“Accrued Amounts”), which amounts shall be promptly paid in a lump sum to Executive’s estate; (ii) any other amounts or benefits owing to Executive under the then applicable employee benefit plans, long term incentive plans or equity plans and programs of the Company which shall be paid or treated in accordance with Section 4(c) hereof with regard to the May 2001 Stock Options and otherwise in accordance with the terms of such plans and programs; (iii) continuation, for twelve (12) months following the date of death, of Executive’s health benefits for Executive’s dependents at the same level and cost as if Executive was an employee of the Company; and (iv) if a bonus plan is in place, the product of (x) the target annual bonus for the fiscal year of Executive’s death, multiplied by (y) a fraction, the numerator of which is the number of days of the current fiscal year during which Executive was employed by the Company, and the denominator of which is 365, which bonus shall be paid in a lump sum when bonuses for such period are paid to the Company’s other executives, but, in any event, in the fiscal year following the fiscal year in which such bonus is earned.

 

(b)           Disability.  Subject to Section 9(f), if Executive’s employment is terminated by reason of Executive’s Disability, Executive shall be entitled to receive the payments and benefits to which his representatives would be entitled in the event of a termination of employment by reason of his death plus Executive shall be entitled to continuation, for twelve (12) months following such termination of employment, of group life and disability insurance benefits as if Executive was an active employee of the Company.

 

(c)           Termination by Executive for Good Reason or Termination by the Company without Cause.  Subject to Sections 9(f) and 9(g), if Executive terminates his employment hereunder for Good Reason during the Employment Term or Executive’s employment with the Company is terminated by the Company without Cause, then:

 

                                                (i)            if such termination does not occur during the Protection Period (as defined in Section 9(c)(ii) below), Executive shall be entitled to receive, (A) in equal installments paid in accordance with the Company’s normal payroll practices commencing with the first pay period after such termination over a period of twenty-four (24) months after such termination (except as provided below), an amount equal to two (2) times the sum of his Base Salary and target bonus, if any, for the year in which such termination occurs (provided, however, in the event that the Base Salary or target bonus, if any, has been decreased in the twelve (12) months prior to the termination, the amount to be used shall be the highest Base Salary and target bonus, if any, during such twelve (12) month period) (the “Non-Protection Period Severance Amount”); (B) any Accrued Amounts at the date of termination; (C) any other amounts or benefits owing to Executive under the then applicable employee benefit, long term incentive or equity plans and programs of the Company, which shall be paid or treated in accordance with Section 4(c) hereof with regard to the May 2001 Stock Options and otherwise in accordance with the terms of such plans and programs, except that (1) the portion of each outstanding option to acquire shares of Common Stock held by Executive that would have otherwise vested with the passage of time during the one-year period immediately following Executive’s termination of employment had Executive remained employed with the Company during such one-year period shall be treated as immediately vested as of the date of such termination, (2) each outstanding vested option to acquire shares of Common Stock held by Executive as of the date of such termination (taking into account the additional vesting described in the preceding clause (1)) shall remain exercisable until the earlier of (x) the expiration of such option’s original term or (y) 18 months following the date of termination and (3) with respect to each outstanding grant of shares of restricted Common Stock (which, for purposes of clarity, are considered to include restricted stock units, performance share units, and other similar equity grants) held by Executive, such grant shall be deemed to be vested with respect to a number of shares determined as the product of (I) the total number of shares subject to such grant and (II) the quotient obtained by dividing (aa) the number of days in the relevant restricted period that Executive was employed with the Company (assuming for such purpose that Executive remained employed with the Company for the one-year period immediately following Executive’s termination of employment) by (bb) the number of days in the relevant restricted

 

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period, but only to the extent that the application of this clause (3) would result in more shares being vested than would otherwise be vested under the terms of such plans and programs and applicable award agreements; (D) continuation, for two years following such termination of employment, of group health, life and disability insurance benefits as if Executive were an employee of the Company, subject to the terms set forth in Section 9(c)(iii); and (E) if a bonus plan is in place, the product of (x) the target annual bonus for the fiscal year of Executive’s termination, multiplied by (y) a fraction, the numerator of which is the number of days of the current fiscal year during which Executive was employed by the Company, and the denominator of which is 365, which bonus shall be paid in a lump sum when bonuses for such period are paid to the Company’s other executives, but, in any event, in the fiscal year following the fiscal year in which such bonus is earned;

 

                (ii)           if such termination occurs during the period commencing on the date of a Change in Control (as defined in Section 11(a)) and ending on the third anniversary of such Change in Control (the “Protection Period”), Executive shall be entitled to receive, (A) a lump sum cash payment to be paid on the fifth day after such termination in an amount equal to three (3) times the sum of his Base Salary and target bonus, if any, for the year in which such termination occurs (provided, however, in the event that the Base Salary or target bonus, if any, has been decreased in the twelve (12) months prior to the termination, the amount to be used shall be the highest Base Salary and target bonus, if any, during such twelve (12) month period) (the “Protection Period Severance Amount”); (B) any Accrued Amounts at the date of termination; (C) any other amounts or benefits owing to Executive under the then applicable employee benefit, long term incentive or equity plans and programs of the Company, which shall be paid or treated in accordance with the terms of such plans and programs, except that (1) each outstanding option to acquire shares of Common Stock held by Executive as of the date of such termination shall become immediately fully vested and remain exercisable until the earlier of (x) the expiration of such option’s original term or (y) 36 months following the date of termination and (2) each outstanding share of restricted Common Stock (which, for purposes of clarity, are considered to include restricted stock units, performance share units, and other similar equity grants) held by Executive shall be immediately fully vested as of the date of such termination; (D) continuation, for three years following such termination of employment, of group health, life and disability insurance benefits as if Executive were an employee of the Company, subject to the terms set forth in Section 9(c)(iii); and (E) if a bonus plan is in place, the product of (x) the target annual bonus for the fiscal year of Executive’s termination, multiplied by (y) a fraction, the numerator of which is the number of days of the current fiscal year during which Executive was employed by the Company, and the denominator of which is 365, which bonus shall be paid in a lump sum when bonuses for such period are paid to the Company’s other executives, but, in any event, in the fiscal year following the fiscal year in which such bonus is earned; and

 

                                (iii)          with respect to the continuation of group health benefits to Executive pursuant to Section 9(c)(i)(D) or Section 9(c)(ii)(D), Executive shall pay the full cost for such group health coverage on an after-tax basis for each month that Executive elects to retain such coverage by payment of the monthly cost of such coverage as determined for purposes of health care continuation under Section 4980B of the Internal Revenue Code of 1986, as amended (the “COBRA Premium”).  Within five (5) business days of the date of Executive’s termination of employment, the Company shall make a payment to Executive equal to the number of full and partial months remaining in the calendar year in which Executive’s employment is terminated, multiplied by the difference between the COBRA Premium for such year and the monthly amount that Executive was required to pay for group health coverage immediately prior to his termination of employment.  On each January 2 thereafter until the end of the applicable period under Section 9(c)(i)(D) or Section 9(c)(ii)(D), if Executive has maintained group health coverage through the last day of the preceding calendar year, the Company shall make a payment to Executive equal to the difference between the COBRA Premium and the monthly amount that Executive was required to pay for group health coverage immediately prior to his termination of employment, multiplied by 12, or, if the period of coverage is for less than a year, by the number of full

 

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and partial months remaining in the year until the end of the applicable period under Section 9(c)(i)(D) or Section 9(c)(ii)(D).  Notwithstanding the foregoing, the first 18 months following the date of Executive’s termination of employment shall be considered to be the period during which Executive shall be eligible for continuation coverage under Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”).

 

(d)           Termination with Cause or Voluntary Resignation without Good Reason.  If, Executive’s employment hereunder is terminated (i) by the Company for Cause or (ii) by Executive without Good Reason, Executive shall be entitled to receive only his Base Salary through the date of termination, and any unreimbursed business expenses payable pursuant to Section 7 and, if such termination is by Executive without Good Reason, any bonus that has been declared or earned but not yet paid for a completed fiscal year.  Executive’s rights under all benefits plans and equity grants shall be determined in accordance with the Company’s plans, programs and grants, except as provided in Section 4(c) hereof with respect to the May 2001 Stock Options.

 

(e)