THIS TERMINATION
AGREEMENT (this “Agreement”) is made and entered into
this 25 th
day of October, 2005, by and between
Encysive Pharmaceuticals Inc., a Delaware corporation having its
principal executive office at 4848 Loop Central Drive, 7th Floor,
Houston, Texas 77081 (hereinafter referred to as the
“Company”), and George W. Cole (hereinafter referred to
as the “Executive”).
WHEREAS, the
Company desires to employ the Executive in an executive capacity
and the Executive desires to enter the Company’s
employ.
NOW, THEREFORE,
for and in consideration of the mutual promises, covenants and
obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Executive hereby agree as
follows:
As used in this
Agreement, the following terms have the meanings prescribed
below:
AAA shall
have the meaning assigned thereto in Section 13.13
hereof
Affiliate
is used in this Agreement to define a relationship to a person or
entity and means a person or entity who, directly or indirectly
through one or more intermediaries, controls, is controlled by, or
is under common control with, such person or entity.
Agreement
shall have the meaning assigned thereto in the preamble.
Altana
Agreements means the Contract of Employment dated June 23,
1994, as amended, and the Confidentiality, Developments and
No-Solicitation Agreement entered into by the Executive and Altana,
Inc., copies of which have been provided to the Company.
Annual
Bonus shall have the meaning assigned thereto in
Section 4.2 hereof.
Base
Salary shall have the meaning assigned thereto in
Section 4.1 hereof.
Board
means the Board of Directors of the Company.
Bonus
Payment shall have the meaning assigned thereto in
Section 11.2 hereof.
Cause
shall have the meaning assigned thereto in Section 5.3
hereof.
Change in
Control of the Company shall be deemed to have occurred if any
of the events set forth in any one of the following paragraphs
shall occur:
(a) any
“person” (as defined in section 3(a)(9) of the Exchange
Act, and as such term is modified in sections 13(d) and 14(d) of
the Exchange Act), excluding the Company or any of its
subsidiaries, a trustee or any fiduciary holding securities under
an employee benefit plan of the Company or any of its subsidiaries,
an underwriter temporarily holding securities pursuant to an
offering of such securities or a corporation owned, directly or
indirectly, by stockholders of the Company in substantially the
same proportions as their ownership of the Company, is or becomes
the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company representing 30% or more of the combined voting power
of the Company’s then outstanding securities; or
(b) during
any period of not more than two consecutive years, individuals who
at the beginning of such period constitute the Board and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in clause (a), (c) or (d) of this definition)
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 period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or
(c) the
stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (i) 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), in combination
with the ownership of any trustee or other fiduciary holder of
securities under an employee benefit plan of the Company, at least
50% of the combined voting power of the voting securities of the
Company or such surviving entity outstanding immediately after such
merger or consolidation, or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no person acquires more than 50% of the
combined voting power of the Company’s then outstanding
securities; or
(d) the
stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the
Company of all or substantially all of the Company’s
assets.
Notwithstanding
the foregoing, no Change in Control shall be deemed to have
occurred if there is consummated any transaction or series of
integrated transactions immediately following which, in the
judgment of the Compensation Committee of the Board, the holders of
the Common Stock, immediately prior to such transaction or series
of transactions continue to have the same proportionate ownership
in an entity which owns all or substantially all of the assets of
the Company immediately prior to such transaction or series of
transactions. Except during a Potential Change in Control of the
Company, the Board may (i) deem any other corporate event
affecting the Company (other than those described in clauses
(a)-(d) of this definition) to be a “Change in
Control,” and (ii) may amend this definition of
“Change in Control” in connection
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with an
identical amendment being made to termination agreements entered
into by the Company and all of its senior executive
officers.
Code means
the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated by the Internal Revenue Service thereunder,
all as in effect from time to time during the Employment
Period.
Common
Stock means the Company’s common stock, par value $.05
per share.
Company
means Encysive Pharmaceuticals Inc., a Delaware corporation, the
principal executive office of which is located at 4848 Loop Central
Drive, 7th Floor, Houston, Texas 77081.
Competing
Business means any individual, business, firm, company,
partnership, joint venture, organization, or other entity that
markets or has entered clinical development of any product
addressing the same disease target as a product discovered by, or
licensed to, the Company which is either (i) in Phase III of
clinical development, (ii) pending approval at U.S. Food &
Drug Administration or (iii) marketed by the Company or its
licensee.
Confidential
Information shall have the meaning assigned thereto in
Section 8.2 hereof.
Date of
Termination means the earliest to occur of (i) the date of
the Executive’s death or (ii) the date of receipt of the
Notice of Termination, or such later date as may be prescribed in
the Notice of Termination in accordance with Section 5.6
hereof.
Disability
means an illness or other disability that prevents the Executive
from discharging his responsibilities under this Agreement for a
period of 180 consecutive calendar days, or an aggregate of 180
calendar days in any calendar year, during the Employment Period,
all as determined in good faith by the Board (or a committee
thereof).
Effective
Date means November 14, 2005.
Employment
Period shall have the meaning assigned thereto in
Section 3 hereof.
Executive
means George W. Cole, an individual residing at 4 Thackery Lane,
Mendham, NJ 07945.
Exchange
Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and
Exchange Commission thereunder, all as in effect from time to time
during the Employment Period.
Excise
Taxes shall have the meaning assigned thereto in
Section 11.1 hereof.
Good
Reason shall have the meaning assigned thereto in
Section 5.5 hereof.
Initial
Term shall have the meaning assigned thereto in Section 3
hereof.
Losses
shall have the meaning assigned thereto in Section 11.8
hereof.
3
Material
Injury shall have the meaning assigned thereto in
Section 5.3 hereof.
Notice of
Termination shall have the meaning assigned thereto in
Section 5.6 hereof.
Potential
Change in Control of the Company shall be deemed to have
occurred if (a) the Company enters into an agreement the
consummation of which would result in the occurrence of a Change in
Control, (b) any person (including the Company) publicly
announces an intention to take or consider taking action which if
consummated would constitute a Change in Control or (c) the
Board adopts a resolution to the effect that a potential Change in
Control of the Company has occurred.
Proprietary
Agreement shall have the meaning assigned thereto in
Section 10.4 hereof.
Rules
shall have the meaning assigned thereto in Section 13.13
hereof.
Successor
Provisions shall have the meaning assigned thereto in
Section 11.5 hereof.
Tax
Consultant shall have the meaning assigned thereto in
Section 11.6 hereof.
Vacation
Time shall have the meaning assigned thereto in
Section 4.3 hereof.
Without
Cause shall have the meaning assigned thereto in
Section 5.4 hereof.
2. General
Duties of the Company and the Executive .
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2.1 (a) The
Company agrees to employ the Executive, and the Executive agrees to
accept employment by the Company and to serve the Company as its
Chief Operating Officer. The Executive shall report to and be
subject to the direction of the Chief Executive Officer and the
Board. The Executive shall have the authority, duties and
responsibilities that are normally associated with and inherent in
the executive capacity in which the Executive will be performing,
and shall have such other or additional duties which are not
inconsistent with the Executive’s position, as may from time
to time be reasonably assigned to the Executive by the Chief
Executive Officer or the Board (or a committee thereof). While
employed hereunder, the Executive shall devote full time and
attention during normal business hours to the affairs of the
Company and use his best efforts to perform faithfully and
efficiently his duties and responsibilities. The Executive agrees
to cooperate fully with the Chief Executive Officer and the Board,
and other executive officers of the Company, and not to engage in
any activity which conflicts with or interferes with the
performance of his duties hereunder. During the Employment Period,
the Executive shall devote his best efforts and skills to the
business and interests of the Company, do his utmost to further
enhance and develop the Company’s best interests and welfare,
and endeavor to improve his ability and knowledge of the
Company’s business, in an effort to increase the value of his
services for the mutual benefit of the parties hereto. During the
Employment Period, it shall not be a violation of this Agreement
for the Executive (i) serve on any corporate board or
committee thereof with the approval of the Board, (ii) to
serve on any civic, or charitable boards or committees (except for
boards or committees of a Competing Business unless approved by the
Board), (iii) deliver lectures, fulfill teaching or speaking
engagements, (iv) testify as a witness in litigation involving
a former employer or (v) manage personal investments;
provided, however, any such activities must not materially
interfere with performance of the Executive’s
responsibilities under this Agreement.
(b) The
Executive represents and covenants to the Company that, except for
the Altana Agreements, he is not subject or a party to any
employment agreement, noncompetition covenant, nondisclosure
agreement, or any similar agreement or covenant that would prohibit
the Executive from executing this Agreement and fully performing
his duties and responsibilities hereunder, or would in any manner,
directly or indirectly, limit or affect the duties and
responsibilities that may now or in the future be assigned to the
Executive hereunder. The Executive further represents and warrants
that he is not presently subject to any legal actions, claims or
administrative proceedings, including bankruptcy proceedings or IRS
audits or proceedings, which would affect his ability to perform
his responsibilities hereunder.
2.2 The Executive
agrees and acknowledges that he owes a fiduciary duty of loyalty,
fidelity and allegiance to act at all times in the best interests
of the Company and to do no act and to make no statement, oral or
written, which would injure the Company’s business, its
interests or its reputation.
2.3 The Executive
agrees to execute and comply at all times during the Employment
Period with all applicable policies, rules and regulations of the
Company, including, without limitation, the Company’s
business ethics policy and the Company’s policy regarding
trading in the Common Stock, as each is in effect from time to time
during the Employment Period.
5
Unless sooner
terminated pursuant to other provisions hereof, the
Executive’s period of employment under this Agreement shall
be a period of one year beginning on the Effective Date (the
“Initial Term”). The Executive’s period of
employment under this Agreement shall be automatically renewed for
successive one-year terms on each anniversary of the Effective Date
(the Initial Term and any and all renewals thereof are referred to
herein collectively as the “Employment Period”), unless
written notice of nonrenewal is delivered by one party to the other
at least 60 days before the end of the Initial Term or any
such one-year renewal term.
4.
Compensation and Benefits .
4.1 Base
Salary . As compensation for services to the Company, the
Company shall pay to the Executive from the Effective Date until
the Date of Termination an annual base salary of $425,000 (the
“Base Salary”). The Board (or a committee thereof) will
conduct an annual review of the Executive’s compensation and,
in its discretion, may increase the Base Salary based upon relevant
circumstances. The Executive’s first performance review will
occur in March 2006. The Base Salary shall be payable in equal
semi-monthly installments or in accordance with the Company’s
established policy, subject only to such payroll and withholding
deductions as may be required by law and other deductions
(consistent with Company policy for all employees) relating to the
Executive’s election to participate in the Company’s
insurance and other employee benefit plans.
4.2 Bonus .
In addition to the Base Salary, the Executive shall be awarded, for
each fiscal year until the Date of Termination, an annual bonus to
be determined by the Board (or a committee thereof), in its sole
discretion pursuant to the incentive or bonus plan for the
Company’s management as in effect from time to time (the
“Annual Bonus”). For the purposes of this Agreement,
the term “Annual Bonus” will refer only to the cash
bonus, and not to long-term incentives to be paid pursuant to the
current compensation plan. Each such Annual Bonus shall be payable
at a time to be determined by the Board (or a committee thereof) in
its sole discretion. The current bonus plan in effect for the
Company’s management, which may be changed at the discretion
of the Board, provides that the Executive is eligible to receive a
target Annual Bonus of up to 65% of his salary based on the
achievement of 100% of individual and corporate goals determined by
the Board or a committee thereof. Any bonus paid for fiscal year
2005 will not be prorated based on the number of days during fiscal
year 2005 that the Executive was employed by the
Company.
4.3
Vacation . Until the Date of Termination, the Executive
shall be entitled to four (4) weeks paid vacation during each
one-year period commencing on the Effective Date (the
“Vacation Time”). The use of any Vacation Time not
taken during the applicable one-year period will be subject to the
Company’s vacation policy as in effect from time to
time.
4.4 Incentive,
Savings and Retirement Plans . Until the Date of Termination,
the Executive shall be eligible to participate in and shall receive
all benefits under all executive incentive, savings and retirement
plans and programs currently maintained or hereinafter established
by the Company for the benefit of its senior executive officers
and/or employees.
6
4.5 Benefit
Plans . Until the Date of Termination, the Executive and/or the
Executive’s family, as the case may be, shall be eligible to
participate in and shall receive all benefits under each welfare
benefit plan of the Company currently maintained or hereinafter
established by the Company for the benefit of its employees. Such
welfare benefit plans may include, without limitation, medical,
dental, disability, group life, accidental death and travel
accident insurance plans and programs. The Company shall not be
obligated to institute, maintain, or refrain from changing,
amending, or discontinuing, any such employee benefit program or
plan, so long as such actions are similarly applicable to covered
employees generally.
4.6
Reimbursement of Expenses . The Executive may from time to
time until the Date of Termination incur various business expenses
customarily incurred by persons holding positions of like
responsibility, including, without limitation, travel,
entertainment and similar expenses incurred for the benefit of the
Company. Subject to the Executive complying with the
Company’s policy regarding the reimbursement of such expenses
as in effect from time to time during the Employment Period, which
does not necessarily allow reimbursement of all such expenses, the
Company shall reimburse the Executive for such expenses from time
to time, at the Executive’s request, and the Executive shall
account to the Company for all such expenses.
4.7 Stock
Options and Restricted Stock .
(a) The
Compensation Committee of the Board, in its sole discretion, may
grant to the Executive options to acquire shares of Common Stock
and restricted shares of Common Stock with such terms and
conditions as determined by the Compensation Committee of the Board
in its sole discretion. The long-term incentive portion of the
current compensation plan in effect for the Company’s
management, which may be changed at the discretion of the Board,
provides that the Executive is eligible to receive grants of
options to acquire shares of Common Stock and restricted shares of
Common Stock based on the achievement of individual and corporate
goals determined by the Board or a committee thereof. For
Executive’s position, the current combined annual target
range for stock options and restricted stock grants is $450,000 to
$700,000.
(b) On the
Effective Date, the Company will grant to the Executive options
(the “Options”) to acquire the number of shares of
Common Stock having an aggregate Black-Scholes value (or other
suitable valuation model used by the Company) of $200,000 (based on
the exercise price of the Options), with the exercise price to be
the closing sales price for the Common Stock on The Nasdaq National
Market on the trading day immediately preceding the Effective Date.
The Options will provide for the vesting of one-half of the shares
covered by the Options on each of November 30, 2007, and
November 30, 2008. The Options will be granted pursuant to,
and will be governed by the terms of, the Company’s incentive
stock plans as then in effect, and the provisions of this Agreement
(including Section 6.3(e) hereof). At the request of the
Executive, the Company will cause the Options to be granted as
Incentive Stock Options under the Code, to the extent permitted,
and subject to the terms provided under, the Code. All Options will
provide that they will not continue to vest after the breach (and
failure to cure such breach as provided for therein) by the
Executive of any of Sections 7, 8, 9, 10 or 12 of this
Agreement.
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(c) On the
Effective Date, the Company will grant the Executive the number of
restricted shares of Common Stock having an aggregate fair market
value of $200,000 based on the closing sales price for the Common
Stock on The Nasdaq National Market on the trading day immediately
preceding the Effective Date. These shares granted by the Company
will be issued as “restricted stock” under the
Company’s incentive stock plans, and will vest in one-half
increments on each of November 30, 2007, and November 30,
2008. Prior to vesting, these shares will be held by the Company
and will bear the restrictive legends set forth in, and be governed
by the terms of, the Company’s incentive stock plans. This
restricted stock will not be transferable or saleable until vested,
and all unvested restricted stock will be forfeited and cancelled
by the Company if the Executive terminates his employment for any
reason or is terminated for Cause by the Company prior to
November 30, 2008. Upon death or Disability of the Executive,
the unvested restricted stock will vest in full. Upon the
termination of Executive by the Company Without Cause prior to
November 30, 2008, all unvested restricted shares will vest.
All unvested shares of restricted stock will provide that they will
be forfeited after the breach (and failure to cure such breach as
provided for therein) by the Executive of any of Sections 7,
8, 9, 10 and 12 of this Agreement. Upon the vesting of these shares
of restricted stock, the Company will cause the removal of the
restrictive legends on the certificates representing such shares
that relate to the vesting conditions described in this
Section 4.7(c).
(d) The
Company will cause the Options and restricted stock to be issued
under the Company’s 1999 Incentive Stock Plan (the
“1999 Plan”) by the execution and delivery of
agreements containing the terms and conditions set forth in this
Agreement, and the other terms and conditions of the 1999 Plan that
are not inconsistent herewith. The Compensation Committee has,
pursuant to the 1999 Plan, authorized such agreements to be issued
on the terms set forth herein pursuant to the authority granted to
the Compensation Committee to alter appropriate terms and
conditions of the 1999 Plan when granting incentive awards under
the 1999 Plan.
4.8
Indemnification Agreements . The Company has entered into an
Indemnification Agreement regarding indemnification of the
Executive in the form of such agreements entered into with the
Company’s other executive officers. The Company will also
cause the Executive to be covered by its director and officer
insurance policies as they are in effect from time to time for its
executive officers
4.9 Relocation
Expenses . The Company will provide for reimbursement of moving
and relocation expenses of the Executive and his family as set
forth on Exhibit A attached hereto. In addition, the
Company, at its cost, shall provide temporary furnished housing for
the Executive pending the Executive’s relocation to Houston.
The Executive will permanently relocate to the Houston, Texas
metropolitan area by the one-year anniversary of the Effective
Date.
8
5.1 Death .
This Agreement shall terminate automatically upon the death of the
Executive.
5.2
Disability . The Company may terminate this Agreement, upon
written notice to the Executive delivered in accordance with
Sections 5.6 and 13.1 hereof, upon the Disability of the
Executive.
5.3 Cause .
The Company may terminate this Agreement, upon written notice to
the Executive delivered in accordance with Sections 5.6 and
13.1 hereof, for Cause. For purposes of this definition of
“Cause,” the term “Company” shall mean the
Company and/or its Affiliates. For purposes of this Agreement,
subject to the notice provisions set forth below,
“Cause” means (i) the conviction (or plea of nolo
contendere or equivalent plea) of the Executive of a felony (which,
through lapse of time or otherwise, is not subject to appeal),
(ii) the Executive having engaged in intentional misconduct
causing a violation by the Company of any state or federal laws
which results in a material injury to the business, condition
(financial or otherwise), results of operations or prospects of the
Company as determined in good faith by the Board or a committee
thereof (a “Material Injury”), (iii) the Executive
having engaged in a theft of corporate funds or corporate assets of
the Company or in an act of fraud upon the Company, (iv) an
act of personal dishonesty taken by the Executive that was intended
to result in personal enrichment of the Executive at the expense of
the Company, (v) the Executive’s refusal, without proper
legal cause, to perform his duties and responsibilities as
contemplated in this Agreement or any other breach by the Executive
of this Agreement, and (vi) the Executive’s engaging in
activities which would constitute a breach of the Company’s
business ethics policy, the Company’s policies regarding
trading in the Common Stock or any other applicable policies, rules
or regulations of the Company which results in a Material Injury.
If the Company desires to terminate the Executive for Cause
pursuant to the provisions of this Section 5.3, the Executive
will be given a written notice by the Board of the facts and
circumstances providing the basis for termination for Cause, and
the Executive will have 30 days from the date of such notice
to remedy, cure or rectify the situation giving rise to termination
for Cause to the reasonable satisfaction of the Board (except in
the event of termination for Cause pursuant to subparagraph
(i) above as to which no cure period will be
permitted).
5.4 Without
Cause . The Company may terminate this Agreement Without Cause,
upon written notice to the Executive delivered in accordance with
Sections 5.6 and 13.1 hereof. For purposes of this Agreement,
the Executive will be deemed to have been terminated “Without
Cause” if the Executive is terminated by the Company for any
reason other than Cause, Disability or death or if the Company
delivers a notice of nonrenewal of this Agreement pursuant to
Section 3 hereof.
5.5 Good
Reason . The Executive may terminate this Agreement for Good
Reason, upon written notice to the Company delivered in accordance
with Sections 5.6 and 13.1 hereof. For purposes of this
definition of “Good Reason,” the term
“Company” shall mean the Company and/or its Affiliates.
For purposes of this Agreement, “Good Reason” means
(i) the assignment to the Executive of any duties materially
inconsistent in any respect with the Executive’s duties or
responsibilities as contemplated in this Agreement, provided that
the
9
Executive
specifically terminates his employment for Good Reason hereunder
within 120 days from the date that he has actual notice of
such material breach; (ii) any other action by the Company
which results in a material diminishment in the Executive’s
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities, provided that
the Executive specifically terminates his employment for Good
Reason hereunder within 120 days from the date that he has
actual notice of such material breach; (iii) any breach by the
Company of any of the provisions of this Agreement, provided that
the Executive specifically terminates his employment for Good
Reason hereunder within 120 days from the date that he has
actual notice of such material breach; (iv) requiring the
Executive to relocate to any office or location other than the
Houston, Texas metropolitan area, without his consent; (v) a
5% or more reduction, or attempted reduction, at any time during
the Employment Period, of the Base Salary of the Executive unless
such reduction is also applied to all other senior executive
officers of the Company; or (vi) the taking of any action by
the Company which would adversely affect the Executive’s
participation in or materially reduce the Executive’s
benefits provided under Section 4.5 hereof, unless
(A) there is substituted a comparable benefit that is at least
economically equivalent (in terms of the benefit offered to the
Executive) to the benefit in which the Executive’s
participation is being adversely affected or to the
Executive’s benefits that are being materially reduced, or
(B) the taking of such action affects all other senior
executive officers of the Company.
Notwithstanding
the preceding provisions of this Section 5.5, if the Executive
desires to terminate his employment for Good Reason, he shall first
give written notice of the facts and circumstances providing the
basis for Good Reason to the Board or the Compensation Committee
thereof, and allow the Company thirty (30) days from the date
of such notice to remedy, cure or rectify the situation giving rise
to Good Reason to the reasonable satisfaction of the
Executive.
5.6 Notice of
Termination . Any termination of this Agreement by the Company
or the Executive, shall be communicated by Notice of Termination to
the other party hereto given in accordance with this Agreement. For
purposes of this Agreement, a “Notice of Termination”
means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment
under the provision so indicated and (iii) specifies the
termination date, if such date is other than the date of receipt of
such notice (which termination date shall not be more than
15 days after the giving of such notice, unless otherwise
provided herein). Notwithstanding the foregoing, the Company may
elect to consider the Executive as an employee after the Date of
Termination for purposes of complying with the provisions of
Section 6 hereof.
6.
Obligations of the Company upon Termination .
6.1 Cause;
Other Than Good Reason . If this Agreement shall be terminated
either by the Company for Cause or by the Executive for any reason
other than Good Reason (including delivery by the Executive of a
notice of nonrenewal of this Agreement pursuant to Section 3
hereof), the Company shall pay to the Executive, in a lump sum in
cash within 30 days after the Date of Termination, the
aggregate of the Executive’s Base Salary (as in effect on the
Date of Termination) through the Date of Termination, if not
theretofore paid, and, in the case of
10
compensation
previously deferred by the Executive, all amounts of such
compensation previously deferred and not yet paid by the Company.
All other obligations of the Company and rights of the Executive
hereunder shall terminate effective as of the Date of Termination,
except as provided for in any benefit plans, incentive stock plans
or other compensation plans and as otherwise provided in this
Agreement.
6.2 Death or
Disability . If this Agreement is terminated as a result of the
Executive’s death or Disability, the Company shall pay to the
Executive or his estate, in a lump sum in cash within 30 days
of the Date of Termination, the Executive’s Base Salary (as
in effect on the Date of Termination) through the Date of
Termination, if not theretofore paid, and, in the case of
compensation previously deferred and bonuses previously earned by
the Executive, all amounts of such compensation previously deferred
and earned and not yet paid by the Company. The Executive or his
estate shall also be entitled to receive those death and Disability
benefits to which the Executive is entitled under the
Company’s benefit and insurance plans. All other obligations
of the Company and rights of the Executive hereunder shall
terminate effective as of the Date of Termination, except as
provided for in any benefit plans, incentive stock p
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