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Exhibit
10.32
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this “ Agreement ”) is entered into by and
between Basin Water, Inc., a Delaware corporation (the “
Company ”), and Christopher Chisholm (“
Executive ”), and shall be effective as of
June 17, 2008 (the “ Effective Date
”).
WHEREAS, the Company desires
to employ Executive, and Executive desires to commence employment
with the Company, on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in
consideration of the mutual promises herein contained, the parties
agree as follows:
1. Definitions . As
used in this Agreement, the following terms shall have the
following meanings:
(a) Board . “
Board ” means the Board of Directors of the
Company.
(b) Bonus . “
Bonus ” means an amount equal to the greater of
(i) Executive’s target annual bonus for the fiscal year
in which the date of termination occurs, or (ii) the bonus
awarded to Executive for the fiscal year prior to the date of
termination. If any portion of the bonuses awarded to Executive
consisted of securities or other property, the fair market value
thereof shall be determined in good faith by the Board.
(c) Cause . “
Cause ” means any of the following:
(i) the commission of an act
of fraud or embezzlement by Executive involving the Company or any
successor or affiliate thereof or Executive’s commission of
any other act of dishonesty that has a material adverse impact on
the Company or any successor or affiliate thereof;
(ii) a conviction of, or plea
of “guilty” or “no contest” to, a felony by
Executive or any other crime involving moral turpitude (it being
understood that violation of the motor vehicle code does not
constitute such a crime);
(iii) any unauthorized use or
disclosure by Executive of confidential information or trade
secrets of the Company or any successor or affiliate
thereof;
(iv) Executive’s gross
negligence, insubordination or material violation of any duty of
loyalty to the Company or any successor or affiliate thereof or any
other material misconduct on the part of Executive;
(v) Executive’s ongoing
and repeated failure or refusal to perform or neglect of
Executive’s duties as required by this Agreement, which
failure, refusal or neglect continues for fifteen (15) days
following Executive’s receipt of written notice from the
Company’s President and Chief Executive Officer (the “
President ”) or the Board stating with specificity the
nature of such failure, refusal or neglect; or
(vi) Executive’s breach
of any material provision of this Agreement;
provided , however , that
prior to the determination that “Cause” under clause
(i), (iii), (iv), (v) or (vi) of this Section 1(c)
has occurred, the Company shall (w) provide to Executive in
writing, in reasonable detail, the reasons for the determination
that such “Cause” exists, (x) other than with
respect to clause (v) above which specifies the applicable
period of time for Executive to remedy his breach, afford Executive
a reasonable opportunity to remedy any such breach, if such breach
is capable of being remedied, and (y) provide Executive an
opportunity to be heard prior to the final decision to terminate
the Executive’s employment hereunder for such
“Cause”; provided, further, that prior to the
determination that “Cause” under clause (vi) of
this Section 1(c) has occurred as a result of an alleged
breach by Executive of Section 3 of this Agreement, the period
provided to Executive to remedy such breach pursuant to clause
(x) above shall be at least ninety (90) days. The Company
shall make any decision that “Cause” exists in good
faith. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon
the advice of counsel for the Company or any successor or affiliate
shall be conclusively presumed to be done, or omitted to be done,
in good faith and in the best interests of the Company or any
successor or affiliate thereof.
The foregoing definition
shall not in any way preclude or restrict the right of the Company
or any successor or affiliate thereof to discharge or dismiss
Executive for any other acts or omissions, but such other acts or
omissions shall not be deemed, for purposes of this Agreement, to
constitute grounds for termination for Cause.
(d) Change in Control
. “ Change in Control ” means and includes each
of the following:
(i) the acquisition, directly
or indirectly, by any “person” or “group”
(as those terms are defined in Sections 3(a)(9), 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and the rules thereunder) of
“beneficial ownership” (as determined pursuant to
Rule 13d-3 under the Exchange Act) of securities entitled to
vote generally in the election of directors (“ voting
securities ”) of the Company that represent fifty percent
(50%) or more of the combined voting power of the
Company’s then outstanding voting securities, other
than:
(A) an acquisition by a
trustee or other fiduciary holding securities under any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company or by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any person controlled by the Company,
(B) an acquisition of voting
securities by the Company or a corporation owned, directly or
indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of the stock of the Company,
or
(C) an acquisition of voting
securities pursuant to a transaction described in subsection
(iii) below that would not be a Change in Control under
subsection (iii).
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Notwithstanding the
foregoing, the following event shall not constitute an
“acquisition” by any person or group for purposes of
this Section 1(d): an acquisition of the Company’s
securities by the Company which causes the Company’s voting
securities beneficially owned by a person or group to represent
fifty percent (50%) or more of the combined voting power of
the Company’s then outstanding voting securities;
or
(ii) during any period of two
(2) consecutive years, individuals who, at the beginning of
such period, constitute the Board together with any new director(s)
(other than a director designated by a person who shall have
entered into an agreement with the Company to effect a transaction
described in clauses (i) or (iii) of this
Section 1(d)) whose election by the Board or nomination for
election by the Company’s stockholders was approved by a vote
of at least two-thirds ( 2
/ 3 ) of the directors then still in
office who either were directors at the beginning of the two
(2) year period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority thereof; or
(iii) the consummation by the
Company (whether directly involving the Company or indirectly
involving the Company through one or more intermediaries) of
(x) a merger, consolidation, reorganization, or business
combination or (y) a sale or other disposition of all or
substantially all of the Company’s assets or (z) the
acquisition of assets or stock of another entity, in each case
other than a transaction:
(A) which results in the
Company’s voting securities outstanding immediately before
the transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
Company or the person that, as a result of the transaction,
controls, directly or indirectly, the Company or owns, directly or
indirectly, all or substantially all of the Company’s assets
or otherwise succeeds to the business of the Company (the Company
or such person, the “ Successor Entity ”)),
directly or indirectly, at least a majority of the combined voting
power of the Successor Entity’s outstanding voting securities
immediately after the transaction, and
(B) after which no person or
group beneficially owns voting securities representing fifty
percent (50%) or more of the combined voting power of the
Successor Entity; provided , however , that no person
or group shall be treated for purposes of this clause (B) as
beneficially owning fifty percent (50%) or more of combined
voting power of the Successor Entity solely as a result of the
voting power held in the Company prior to the consummation of the
transaction; or
(iv) the Company’s
stockholders approve a liquidation or dissolution of the
Company.
(e) Code . “
Code ” means the Internal Revenue Code of 1986, as
amended from time to time, and the Treasury Regulations and other
interpretive guidance issued thereunder.
(f) Excise Tax .
“ Excise Tax ” means the excise tax imposed by
Section 4999 of the Code, together with any interest or
penalties imposed with respect to such excise tax.
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(g) Good Reason .
“ Good Reason ” means Executive’s
voluntary resignation following any one or more of the following
that is effected without Executive’s written
consent:
(i) a material change in the
geographic location at which Executive must perform his duties (and
the Company and Executive agree that the relocation of the office
of Executive more than fifty (50) miles from the
Company’s facility in Houston, Texas as of the Effective Date
shall constitute a material change);
(ii) a material diminution in
Executive’s authority, duties or responsibilities (in each
case as compared to Executive’s authority, duties or
responsibilities on the Effective Date) (provided that the fact
that the Company becomes a subsidiary of an acquirer or a division
of an acquirer shall not in and of itself by considered a material
diminution in Executive’s authority, duties or
responsibilities);
(iii) a material diminution
in Executive’s base compensation, other than pursuant to a
Company-wide reduction of base compensation and target bonuses for
employees of the Company generally, provided that such reduction is
no greater in proportion to the reduction in base compensation for
the Company’s other senior executives;
(iv) a material diminution in
the authority, duties or responsibilities of the supervisor to whom
Executive is required to report; or
(v) any other action or
inaction that constitutes a material breach by the Company of its
obligations to Executive under this Agreement.
Notwithstanding the
foregoing, Good Reason shall only exist if Executive shall have
provided the Company with ninety (90) days written notice of
the initial occurrence of any of the foregoing events or
conditions, and the Company fails to eliminate the conditions
constituting Good Reason within thirty (30) days after receipt
of written notice of such event or condition from Executive.
Executive’s termination by reason of resignation from
employment with the Company for Good Reason shall be treated as
involuntary. Executive’s resignation from employment with the
Company for Good Reason must occur within two (2) years
following the initial existence of the act or failure to act
constituting Good Reason.
(h) Payment . “
Payment ” means any payment or distribution in the
nature of compensation (within the meaning of
Section 280G(b)(2) of the Code) to or for the benefit of the
Executive, whether paid or payable pursuant to this Agreement or
otherwise.
(i) Permanent
Disability . Executive’s “ Permanent
Disability ” shall be deemed to have occurred if
Executive shall become physically or mentally incapacitated or
disabled or otherwise unable fully to discharge his duties
hereunder for a period of ninety (90) consecutive calendar
days or for one hundred twenty (120) calendar days in any one
hundred eighty (180) calendar-day period. The existence of
Executive’s Permanent Disability shall be determined by the
Company on the advice of a physician chosen by the Company and the
Company reserves the right to have the Executive examined by a
physician chosen by the Company at the Company’s
expense.
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(j) Stock Awards .
“ Stock Awards ” means all stock options,
restricted stock and such other awards granted pursuant to the
Company’s stock option and equity incentive award plans or
agreements and any shares of stock issued upon exercise
thereof.
2. Term of Agreement .
Executive’s employment under this Agreement shall commence on
the Effective Date and continue until the third anniversary of the
Effective Date (the “ Employment Term
”).
3. Services to Be
Rendered.
(a) Duties and
Responsibilities . Executive shall serve as Vice President and
Chief Financial Officer of the Company and shall perform such
duties as are typical for those positions in public companies of
similar size and industry. In the performance of such duties,
Executive shall report directly to the President and shall be
subject to the direction of the President and the Board and to such
limits upon Executive’s authority as the President or the
Board may from time to time impose. Executive hereby consents to
serve as an officer and/or director of the Company or any
subsidiary or affiliate thereof without any additional salary or
compensation, if so requested by the President or the Board.
Executive shall be employed by the Company on a full time basis.
Executive’s primary place of work shall be the
Company’s facility in Houston, Texas, or such other location
as may be designated by the President from time to time (such
locations referred to herein as the “ Primary Work
Locations ”). The Company shall not require or expect the
Executive to relocate his residence from the Houston, Texas
metropolitan area as part of his job responsibilities and any such
requirement shall constitute a material breach of this Agreement by
the Company. Executive understands and agrees that he may be
required to travel and perform services for the Company at such
other places within or outside the United States as the President
may direct from time to time, however, Executive’s primary
place of work shall remain the Primary Work Locations. Executive
shall be subject to and comply with the policies and procedures
generally applicable to senior executives of the Company to the
extent the same are not inconsistent with any term of this
Agreement.
(b) Exclusive Services
. Executive shall at all times faithfully, industriously and to the
best of his ability, experience and talent perform to the
satisfaction of the President and the Board all of the duties that
may be assigned to Executive hereunder and shall devote
substantially all of his business time and efforts to the
performance of such duties. Subject to the terms of Section 6,
this shall not preclude Executive from devoting time to personal
and family investments or serving on community and civic boards, or
participating in industry associations, provided such activities do
not materially interfere with his duties to the Company, as
determined in good faith by the President and the Board. Executive
agrees that he will not join any boards, other than community and
civic boards (which do not materially interfere with his duties to
the Company), without the prior approval of the President or the
Board.
4. Compensation and
Benefits . The Company shall pay or provide, as the case may
be, to the Executive the compensation and other benefits and rights
set forth in this Section 4, commencing as of the Effective
Date:
(a) Base Salary . The
Company shall pay to Executive a base salary of $265,000 per year
(the “ Base Salary ”), payable in accordance
with the Company’s usual pay
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practices (and in any event no less
frequently than monthly). Executive’s Base Salary shall be
subject to review annually by and at the sole discretion of the
Compensation Committee of the Board based on the Company’s
performance, Executive’s performance and taking into account
the recommendation of the President. Such adjusted annual base
salary shall then become Executive’s “Base
Salary” for purposes of this Agreement.
(b) Bonus . Executive
shall be eligible to receive a bonus based on achievement of annual
targeted revenue and net income, as established by the Compensation
Committee of the Board each fiscal year. If actual performance is
less than eighty percent (80%) of target, no bonus will be
earned or paid. If actual performance is eighty percent
(80%) or more of target, then Executive shall earn and be paid
a bonus as a percentage of Base Salary as follows:
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% of Target Achieved
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80 |
% |
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90 |
% |
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100 |
% |
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110 |
% |
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120 |
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% of Base Salary as Bonus
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15 |
% |
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30 |
% |
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50 |
% |
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60 |
% |
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75 |
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All interim percentages will be
calculated on straight-line, pro rata basis. For this purpose,
revenue and net income shall be defined to exclude contribution
from any future acquisitions, initiatives or other joint ventures
of the Company, unless specifically included by the Compensation
Committee of the Board, in advance and in writing. Any material
reduction in Executive’s target bonus hereunder shall
constitute a material breach of this Agreement by the
Company.
In the event that the performance
targets are not achieved, the Compensation Committee of the Board
in its sole discretion may elect to pay a discretionary bonus of up
to twenty-five percent (25%) of Base Salary based on other
factors not related to achievement of the performance
targets.
(c) Benefits .
Executive shall be entitled to participate in benefits under the
Company’s benefit plans and arrangements, including, without
limitation, any employee benefit plan or arrangement made available
in the future by the Company to its senior executives, subject to
and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. The Company shall
have the right to amend or delete any such benefit plan or
arrangement made available by the Company to its senior executives
and not otherwise specifically provided for herein. The Company
shall provide Executive with the following employee
benefits:
(i) The Company shall provide
Executive long-term disability insurance at its cost to the
Executive in an amount equal to 75% of Executive’s annual
Base Salary up to a maximum benefit of $30,000 per month (total
benefit to be provided through a combination of
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“group” program offered to
all employees and supplemental individual disability policy for the
Executive (such supplemental coverage to be provided using existing
policies owned by Executive, if requested by Executive and if such
policies are commercially reasonable as to cost));
(ii) The Company shall
provide Executive life insurance at its cost in an amount equal to
three (3) times Executive’s annual base salary (total
benefit to be provided through Company’s basic group term
life insurance plan, should one be established, and an individual
term life insurance policy for the Executive) (such individual
policy to be provided using existing policies owned by Executive,
if requested by Executive and if such policies are commercially
reasonable as to cost)); and
(iii) The Company agrees to
reimburse the Executive for out-of-pocket expenses relating to a
biennial physical examination up to a maximum of $3,000.
The Company’s failure
to continue in effect compensation and benefit plans that provide
Executive with benefits that are no less favorable on an aggregate
basis, both in terms of the amount of benefits provided and the
level of Executive’s participation relative to other
participants, to the benefits provided to Executive under the
Company’s compensation and benefit plans and practices on the
Effective Date shall constitute a material breach of this Agreement
by the Company.
Any amounts payable under
this Section 4(c) shall be made in accordance with Treasury
Regulation Section 1.409A-3(i)(1)(iv) and shall be paid on or
before the last day of Executive’s taxable year following the
taxable year in which Executive incurred the expenses. The amounts
provided under this Section 4(c) during any taxable year of
Executive’s will not affect such amounts provided in any
other taxable year of Executive’s, and Executive’s
right to reimbursement for such amounts shall not be subject to
liquidation or exchange for any other benefit.
(d) Expenses . The
Company shall reimburse Executive for reasonable out-of-pocket
expenses incurred in connection with the performance of his duties
hereunder, subject to (i) such policies as the Company may
from time to time establish, and (ii) Executive furnishing the
Company with evidence in the form of receipts satisfactory to the
Company substantiating the claimed expenditures. Additionally, the
Company shall reimburse Executive for the following:
(i) Out-of-pocket expenses
relating to professional dues and registration fees related to the
maintenance of Executive’s Certified Public Accountant
license and Executive’s membership in up to two
(2) professional organizations of which he is a member as of
the Effective Date; and
(ii) Out-of-pocket expenses
relating to all costs for necessary continuing education required
to maintain Executive’s Certified Public Accountant
license.
Any amounts payable under
this Section 4(d) shall be made in accordance with Treasury
Regulation Section 1.409A-3(i)(1)(iv) and shall be paid on or
before the last day of Executive’s taxable year following the
taxable year in which Executive incurred the expenses. The
amounts
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provided under this Section 4(d)
during any taxable year of Executive’s will not affect such
amounts provided in any other taxable year of Executive’s,
and Executive’s right to reimbursement for such amounts shall
not be subject to liquidation or exchange for any other
benefit.
(e) Paid Time Off .
Executive shall be entitled to such periods of paid time off
(“ PTO ”) each year as provided under the
Company’s PTO policy and as otherwise provided for senior
executive officers, but in no event shall Executive be entitled to
less than twenty (20) days of PTO per year.
(f) Equity Plans
.
(i) Executive shall be
entitled to participate in any equity-based, incentive or other
employee benefit plan that is generally available to senior
executive officers, as distinguished from general management, of
the Company. Except as otherwise provided in this Agreement,
Executive’s participation in and benefits under any such plan
shall be on the terms and subject to the conditions specified in
the governing document of the particular plan.
(ii) At the first meeting of
the Compensation Committee of the Board on or after the Effective
Date, Executive shall be granted a restricted stock award of
150,000 shares of the Company’s common stock (the “
Restricted Stock ”) under the Company’s 2006
Equity Incentive Award Plan (the “ 2006 Plan ”).
The shares of Restricted Stock will be subject to forfeiture in the
event Executive’s employment with or service to the Company
terminates prior to the vesting of the shares in accordance with
the terms of this Agreement. The restrictions on such Restricted
Stock shall lapse as follows: 25,000 shares shall vest on
December 31, 2008, 50,000 shares shall vest on
December 31, 2009, and 75,000 shares shall vest on
December 31, 2010, subject to Executive’s continued
employment or service with the Company on each such date. Subject
to Sections 4(g) and 5, such Restricted Stock shall be subject to
the terms and conditions of the 2006 Plan and the restricted stock
award agreement pursuant to which such Restricted Stock is granted
to the extent such provisions are not less favorable to Executive
than the applicable provisions of this Agreement.
(iii) Effective on the
Effective Date, Executive shall be granted options to purchase such
number of shares as is determined by dividing (A) $185,500
(representing 70% of the Executive’s initial Base Salary) by
(B) the fair market value of the Company’s common stock
on the Effective Date, as determined under the 2006 Plan. Such
options shall have an exercise price per share equal to the fair
market value per share of the Company’s common stock on the
date of grant, and shall vest and become exercisable over a three
year period, with one third of the shares vesting on each of the
first, second and third anniversaries of the Effective Date,
subject to Executive’s continued employment or service with
the Company on each such date.
(g) Accelerated Vesting of
Stock Awards .
(i) In the event of a Change
in Control within six (6) months following the Effective Date,
the vesting and/or exercisability of twenty-five percent
(25%) of
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Executive’s outstanding Stock
Awards shall be automatically accelerated immediately prior to the
Change in Control.
(ii) In the event of a Change
in Control more than six (6) months following the Effective
Date, the vesting and/or exercisability of one hundred percent
(100%) of Executive’s outstanding Stock Awards shall be
automatically accelerated immediately prior to the Change in
Control.
(iii) If Executive’s
employment is terminated by the Company without Cause or by
Executive for Good Reason, in each case within twenty-four
(24) months following a Change in Control, the vesting and/or
exercisability of one hundred percent (100%) of
Executive’s outstanding Stock Awards shall be automatically
accelerated as of the date of termination; provided ,
however , that if the termination of Executive’s
employment by the Company without Cause or by Executive for Good
Reason occurs within six (6) months following the Effective
Date, none of Executive’s Stock Awards shall vest on an
accelerated basis pursuant to this clause (iii) (although
Executive’s Stock Awards may still accelerate pursuant to
clauses (i), (ii) and/or (iv), to the extent
applicable).
(iv) If Executive’s
employment is terminated by the Company without Cause or by
Executive for Good Reason, in each case prior to a Change in
Control or more than twenty-four (24) months following a
Change in Control, the vesting and/or exercisability of one hundred
percent (100%) of Executive’s outstanding Stock Awards
shall be automatically accelerated as of the date of termination
(provided that the vesting and/or exercisability of any Stock
Awards the vesting of which is performance-based shall not be
accelerated pursuant to this clause (iv)).
(v) The vesting pursuant to
clauses (i), (ii), (iii) and (iv) of this
Section 4(g) shall be cumulative. The foregoing provisions are
hereby deemed to be a part of each Stock Award and to supersede any
less favorable provision in any agreement or plan regarding such
Stock Award.
5. Termination and
Severance . Executive shall be entitled to receive benefits
upon termination of employment only as set forth in this
Section 5:
(a) At-Will Employment;
Termination . The Company and Executive acknowledge that
Executive’s employment is and shall continue to be at-will,
as defined under applicable law, and that Executive’s
employment with the Company may be terminated by either party at
any time for any or no reason, with or without notice. If
Executive’s employment terminates for any reason, Executive
shall not be entitled to any payments, benefits, damages, award or
compensation other than as provided in this Agreement.
Executive’s employment under this Agreement shall be
terminated immediately on the death of Executive. Upon
Executive’s employment termination for any reason, the
Employer shall pay to Executive (or to the Executive’s
representative or estate, in the event of his death or Permanent
Disability), within ten (10) days after the date of
termination, an amount equal to the sum of
(i) Executive’s Base Salary accrued through the date of
termination, (ii) any bonus earned and approved by the
Compensation Committee as of the date of termination under the
Company’s bonus program, but not yet paid to Executive,
(iii) any amounts payable under any of the employee benefit
plans of
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the Company in accordance with the terms
of such plans, (iv) any accrued but unpaid vacation, in
accordance with the terms of the Company’s vacation plan, and
(v) any unreimbursed expenses incurred by Executive under
Section 4(d). Such payments, rights and benefits described in
clauses (i) through (v) of this Section 5(a) are
collectively referred to hereinafter as the “ Accrued
Obligations .”
(b) Termination without
Cause or for Good Reason .
(i) Termination Apart From
Change in Control . If Executive’s employment is
terminated by the Company without Cause or by Executive for Good
Reason prior to a Change in Control or more than twenty-four
(24) months following a Change in Control, Executive shall be
entitled to receive, in lieu of any severance benefits to which
Executive may otherwise be entitled under any severance plan or
program of the Company, the benefits provided below:
(A) the Company shall pay to
Executive the Accrued Obligations in accordance with
Section 5(a);
(B) subject to
Executive’s continued compliance with the provisions of
Section 6, Executive shall be entitled to receive severance
pay in an amount equal to the sum of:
(1) Executive’s base
salary as in effect immediately prior to the date of termination
for the twelve (12) month period following the date of
termination, payable in a lump sum within ten (10) days
following the effective date of Executive’s Release (as
defined below) but in any event no later than two and one-half (2
1 /
2 )
months following the date of termination; plus
(2) an amount equal to
Executive’s Bonus for the year in which the date of
termination occurs, prorated for the period of Executive’s
service during the year in which the date of termination occurs,
payable in a lump sum within ten (10) days following the
effective date of Executive’s Release but in any event no
later than two and one-half (2 1 / 2 ) months
following the date of termination;
(C) subject to
Executive’s continued compliance with the provisions of
Section 6, for the period beginning on the date of termination
and ending on the date which is twelve (12) full months
following the date of termination (or, if earlier, the date on
which Executive accepts employment with another employer that
provides comparable benefits in terms of cost and scope of
coverage), the Company shall pay for and provide Executive and his
dependents with healthca
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