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SEPARATION PAY AGREEMENT

Termination Severance Agreement

SEPARATION PAY AGREEMENT | Document Parties: WRIGHT MEDICAL GROUP INC | WRIGHT MEDICAL TECHNOLOGY, INC You are currently viewing:
This Termination Severance Agreement involves

WRIGHT MEDICAL GROUP INC | WRIGHT MEDICAL TECHNOLOGY, INC

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Title: SEPARATION PAY AGREEMENT
Governing Law: Tennessee     Date: 5/2/2012
Industry: Medical Equipment and Supplies     Sector: Healthcare

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SEPARATION PAY AGREEMENT

 

 

 

 


 

 

 

 

By and Between

 

 

 

 

WRIGHT MEDICAL TECHNOLOGY, INC.

 

and

 

TIMOTHY E. DAVIS, JR.

 

 

 

 


 

 

 

 

 

 

APRIL 1, 2009

 


 

SEPARATION PAY AGREEMENT

 

TABLE OF CONTENTS

 

1. Definitions.

2. Sarbanes-Oxley Act of 2002.

3. Notice and Date of Termination

4. Termination from the Board and any Offices Held.

5. Severance Benefits upon Involuntary Termination Prior to Change in Control

6. Severance Benefits upon Involuntary Termination in Connection with and after a Change in Control.

7. Severance Benefits upon Termination by the Company for Cause or by the Executive Other than for Good Reason.

8. Severance Benefits upon Termination due to Death.

9. Adjustments to Maximize After-Tax Benefits

10. Nonexclusivity of Rights.

11. Full Settlement; Mitigation.

12. Representations.

13. Executive’s Covenants.

14. Specific Remedies for Executive Breach of the Covenants as outlined in Section 13.

15. Potential Impact of Accounting Restatements on Certain Bonuses and Profits.

16. Successors.

17. Administration Prior to Change in Control.

18. Delayed Commencement of Certain Payments.

19. Miscellaneous.

EXHIBIT A

EXHIBIT B

 


 

Exhibit 10.32

CONFIDENTIAL

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SEPARATION PAY AGREEMENT

 

THIS SEPARATION PAY AGREEMENT (“ Agreement ”), dated as of April 1, 2009 (the “ Effective Date ”) is made by and between WRIGHT MEDICAL TECHNOLOGY, INC., a corporation organized and existing under the laws of the State of Delaware with its principal place of business at 5677 Airline Road, Arlington, Tennessee 38002 (the “ Company ”), and TIMOTHY E. DAVIS, JR. (the “ Executive ”).

WHEREAS , the Company or its Affiliate (collectively referred to as the “ Company ”) employs the Executive as Vice President, Business Development and recognizes the Executive as performing key functions for the success of the Company; and

WHEREAS , the Company has determined that it is in the best interests of the Company to institute formalized separation arrangements for certain executives of the Company, including Executive, in the event of a separation of employment; and

WHEREAS , the Executive desires to enter into this Agreement with Company;

NOW, THEREFORE , based on the foregoing, and for and in consideration of the mutual covenants contained in this Agreement, the Company and the Executive hereby agree as follows:

 

1.     Definitions . For the purposes of this Agreement, the following capitalized terms have the meanings set forth below:

1.1.    “     Accounting Firm ” has the meaning assigned thereto in Section 9.4 hereof.

1.2.        “ Act ” has the meaning assigned in Section 2 hereof.

1.3.        “ Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act.

1.4.        “ Buyer ” has the meaning assigned thereto in Section 19.11 hereof.

1.5.        “ Cause ” means:

1.5.1.        Prior to a Change in Control, (i) the willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness) as determined by the Board, which failure amounts to an intentional and extended neglect of the Executive’s duties, (ii) continued, documented poor performance on the part of the Executive following a reasonably sufficient time for the Executive to improve, (iii) the determination by the Board, in its sole discretion, that the Executive has engaged or is about to engage in conduct materially injurious to the Company, (iv) the Executive’s conviction of or entering of a guilty or no contest plea to a felony charge (or equivalent thereof) in any jurisdiction; and/or (v) the Executive’s participation in activities proscribed in Sections 13.1, 13.3, and 13.4 or the material breach of any other covenants contained herein. For the purposes of clause (i) of this definition, no act, or failure to act, on the Executive’s part shall be deemed to be “willful” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive’s act, or failure to act, was in the best interests of the Company.

 


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1.5.2.         From and after a Change in Control, (i) the willful failure by the Executive to substantially perform the Executive’s duties with the Company (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness) as determined by the Board, which failure amounts to an intentional and extended neglect of the Executive’s duties, (ii) the determination by the Board, in its sole discretion, that the Executive has engaged or is about to engage in conduct materially injurious to the Company, (iii) the Executive’s conviction of or entering of a guilty or no contest plea to a felony charge (or equivalent thereof) in any jurisdiction; and/or (iv) the Executive’s participation in activities proscribed in Sections 13.1, 13.3, and 13.4 or the material breach of any other covenants contained herein. For the purposes of clause (i) of this definition, no act, or failure to act, on the Executive’s part shall be deemed to “willful” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that the Executive’s act, or failure to act, was in the best interests of the Company. Notwithstanding the foregoing, the Executive shall not be deemed terminated for Cause pursuant to clause (i) of this definition unless and until the Executive shall have been provided with reasonable notice of and, if possible, a reasonable opportunity to cure the facts and circumstances claimed to provide a basis for termination of the Executive’s employment for Cause.

1.6.         “ Change in Control ” shall be deemed to have occurred on or after the Effective Date of any of the following:

1.6.1.         the acquisition by any Person or Persons acting as a group of capital stock of Wright Medical Group, Inc. (“ WMG ”), a Delaware corporation and the sole stockholder of the Company, which when added to any capital stock of WMG already owned by the Person, constitutes more than fifty percent (50%) of either (i) the total fair market value of the outstanding capital stock of WMG, or (ii) the total voting power of the outstanding capital stock of WMG; provided, however, that a Change in Control will not be deemed to have occurred when any Person who owns more than fifty percent (50%) of the total fair market value or the total voting power of the outstanding capital stock of WMG as of the date of this Agreement acquires any additional capital stock of WMG; and provided further, that an increase in the percentage of the outstanding capital stock of WMG owned by a Person as a result of a transaction in which WMG acquires its capital stock in exchange for property will be treated as an acquisition of such capital stock by such Person; or

1.6.2.         the acquisition by a Person, in a single transaction or a series of transactions within a twelve (12) month period, of capital stock of WMG representing not less than thirty-five percent (35%) of the total voting power of the outstanding capital stock of WMG; or

1.6.3.         the acquisition by a Person, in a single transaction or a series of transactions within a twelve (12) month period, of consolidated assets of WMG which have a total gross fair market value of not less than forty percent (40%) of the total gross fair market value of all the consolidated assets of WMG immediately prior to such acquisition(s), in each case without regard to any liabilities associated with such assets; provided, however, that a Change in Control will not be deemed to have occurred when such assets are acquired by:

1.6.3.1.         an entity of which WMG owns, directly or indirectly, fifty percent (50%) or more of the total fair market value or the total voting power of the outstanding capital stock;

1.6.3.2.         a Person which owns, directly or indirectly, fifty percent (50%) or more of the total fair market value or the total voting power of the outstanding capital stock of WMG;

1.6.3.3.         an entity of which a Person described in clause ii above owns, directly or indirectly, fifty percent (50%) or more of the total fair market value or the total voting power of the outstanding capital stock;

1.6.3.4.         an entity which is controlled by the stockholders of WMG immediately after the transfer; or

1.6.3.5.         a stockholder of WMG in exchange for or with respect to

 


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capital stock of WMG.

                   1.6.4 a majority of the members of the WMG Board of Directors (the “ Board ”) is replaced in any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Board prior to the date of the appointment or election; or

                    1.6.5 there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation or partnership which results in a forty percent (40%) or more of the Company’s assets to be transferred under the control of a different legal entity.

1.7.         “ Change in Control Date ” means the date on which a Change in Control occurs.

1.8.         “ Code ” means the Internal Revenue Code of 1986, as amended and the Treasury Regulations promulgated thereunder, as in effect from time to time.

1.9.         “ Compensation Committee ” means the compensation committee of the Board.

1.10.         “ Competitive Business ” means the manufacturing, supplying, producing, selling, distributing, marketing or providing for sale of any product, device or instrument manufactured or sold by the Company or any of its Affiliates or subsidiaries, in each case as of the Executive’s Date of Termination.

1.11.         “ Confidential Information ” means non-public privileged or confidential information and trade secrets concerning the operations, future plans and methods of doing business.

1.12.         “ Date of Termination ” has the meaning assigned thereto in Section 3.2 hereof.

1.13.         “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the applicable rulings and regulations thereunder.

1.14.         “ Excise Tax ” has the meaning assigned thereto under Section 9 hereof.

1.15.     “ Good Reason ” means:

1.15.1.         Prior to a Change in Control, the occurrence of any of the following without the prior written consent of the Executive, unless such act or failure to act is corrected prior to the Date of Termination specified in the Notice of Termination (as discussed in Section 3 hereof):

1.15.1.1.         the assignment to the Executive of any duties materially inconsistent with the range of duties and responsibilities appropriate to a senior executive within the Company, such range determined by reference to past, current and reasonable practices within the Company;

1.15.1.2.         a material reduction in the Executive’s overall standing and responsibilities within the Company, but not including a mere title change or a transfer within the Company which does not singly or together adversely affect the Executive’s overall status within the Company, provided however, that no change in reporting relationship resulting from organizational realignment due to the addition of a Chief Operating Officer or Chief Commercial Officer shall be included in this definition of Good Reason;

1.15.1.3.         a material reduction by the Company in the Executive’s aggregate annualized compensation and benefits opportunities, except for across-the-board reductions or modifications of benefit plans similarly affecting all similarly situated executives of comparable rank with the Executive;

 

 

 


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1.15.1.4.         the failure by the Company to pay to the Executive any portion of the Executive’s current compensation and benefits under any program with the Company within thirty (30) days of the date such compensation and/or benefits are due;

1.15.1.5.         any purported termination of the Executive’s employment that is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3 hereof; for the purposes of this Agreement, no such purported termination shall be effective;

1.15.1.6.         the failure by the Company to obtain a satisfactory agreement from any successor of the Company requiring such successor to assume and agree to perform the Company’s obligations under this Agreement, as contemplated in Section 16.3 hereof;

1.15.1.7.         the failure of the Company to provide indemnification and D&O insurance protection as required in Section 10 of this Agreement; or

1.15.1.8.         the failure by the Company to comply with any material provision of this Agreement.

1.15.2.         From and after a Change in Control, the occurrence of any of the following without the prior written consent from the Executive, unless such act or failure to act is corrected prior to the Date of Termination specified in the Notice of Termination (as discussed in Section 3 hereof):

1.15.2.1.         a material and adverse change in the Executive’s title, authority as an executive officer, duties, responsibilities or reporting lines as in effect immediately prior to the Change in Control;

1.15.2.2.         a material reduction in the Executive’s aggregate annualized compensation opportunities or the failure to continue in effect any material benefit plan in which the Executive participates immediately prior to the Change in Control, unless an equitable arrangement, agreeable to the Executive, has been made with respect to such plan as replacement or the reduction in participation levels of such replacement plans of the Executive;

1.15.2.3.         the relocation of the Executive’s principal place of employment immediately prior to the Change in Control Date (the “ Principal Location ”) to a location which is more than forty (40) miles from the Principal Location.

1.15.3.         Notwithstanding any of the foregoing, placing the Executive on a paid leave for up to ninety (90) days pending a determination of whether there is a basis to terminate the Executive for Cause shall not constitute a Good Reason.

1.15.4.         Following a Change in Control, the Executive’s determination that an act or failure to act constitutes Good Reason shall be presumed to be valid unless the Company can provide incontrovertible evidence to the contrary. The Executive’s right to terminate the Executive’s employment for Good Reason shall not be affected by the Executive’s incapacity due to physical or mental illness. The Executive’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any act or failure to act constituting Good Reason hereunder.

1.16.         “ Incentive Compensation Awards ” means awards granted under Incentive Compensation Plans providing the Executive with the opportunity to earn, on a year-by-year or a multi-year basis, annual and long-term incentive compensation.

1.17.         “ Incentive Compensation Plans ” means annual incentive compensation plans and long-term incentive compensation plans of the Company, which long-term incentive compensation plans may include plans offering stock options, restricted stock and other forms of long-tern incentive compensation.

 


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1.18.         “ Involuntary Termination ” means (a) a termination of employment by the Company for other than for Cause or death, or (b) the Executive’s resignation of employment for Good Reason; provided, however, that except as provided in the last paragraph of Section 6 hereof, a termination of the Executive’s employment by reason of the Executive’s retirement on or after age [65] prior to a Change in Control shall not constitute an Involuntary Termination hereunder. In addition, an Involuntary Termination that would cause an amount to be paid to an Executive which is non-qualified deferred compensation subject to Code Section 409A, shall also mean an Executive’s “separation from service” within the meaning of Section 409A of the Code.

1.19.         “ Notice of Termination ” has the meaning assigned thereto under Section 3.1 hereof.

1.20.         “ Payment ” has the meaning assigned thereto in Section 9 hereof.

1.21.         “ Person ” has the meaning set forth in Section 3(a)(9) of the Exchange Act, as modified and used in sections 13(d) and 14(d) thereof, except that the term shall not include (i) the Company or any of its Affiliates, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of the stock in the Company, or (v) a person or group as used in Rule 13d-1(b) promulgated under the Exchange Act.

1.22.         “ Post-Change In Control Accrued Obligations ” has the meaning assigned thereto in Section 6.3.1 hereof.

1.23.         “ Post-Change In Control Severance Payment ” has the meaning assigned thereto in Section 6 hereof.

1.24.         “ Pre-Change In Control Accrued Obligations ” has the meaning assigned thereto in Section 5.3.1 hereof.

1.25.         “ Pre-Change In Control Severance Payment ” has the meaning assigned thereto in Section 5 hereof.

1.26.         “ Principal Location ” has the meaning assigned thereto in Section 1.15.2.3 above.

1.27.         “ Release ” has the meaning assigned thereto in Section 13.5 hereof.

1.28.         “ Total Number of Months ” has the meaning assigned thereto in Sections 5 and 6 hereof.

1.29.         “ Underpayment ” has the meaning assigned thereto in Section 9.2 hereof.

    

2.      Sarbanes-Oxley Act of 2002 . Notwithstanding anything herein to the contrary, if the Company determines, in its good faith judgment, that any provision of this Agreement is likely to be interpreted as a personal loan prohibited by the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder (the “ Act ”), then such provision shall be modified as necessary or appropriate so as to not violate the Act; and if this cannot be accomplished, then the Company shall use its best efforts to provide the Executive with similar, but lawful, substitute benefit(s) at a cost to the Company not to significantly exceed the amount the Company would have otherwise paid to provide such benefit(s) to the Executive. In addition, if the Executive is required to forfeit or to make any repayment of any compensation or benefit(s) to the Company under the Act or any other law, such forfeiture or repayment shall not constitute Good Reason.

3.      Notice and Date of Termination

 


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3.1.         Any termination of the Executive’s employment by the Company or by the Executive shall be communicated by a written notice of termination to the other party (the “ Notice of Termination ”). Where applicable, the Notice of Termination shall indicate the specific termination provision in this Agreement relied upon and shall set 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. Unless the Board determines otherwise, a Notice of Termination by the Executive alleging a termination for Good Reason must be made within 90 days of the initial instance, or the initial instance which should reasonably have been known to the Executive, of an act or failure to act that the Executive alleges to constitute Good Reason.

3.2.         The date of the Executive’s termination of employment with the Company (the “ Date of Termination ”) shall be determined as follows:

3.2.1.         If due to Company terminating the Executive’s employment, either with or without Cause, the Date of Termination shall be the date specified in the Notice of Termination; if for other than Cause, the Date of Termination shall not be less than two (2) weeks from the date such Notice of Termination is given, unless the Company elects to pay the Executive for that period in lieu of notice.

3.2.2.         If due to death, the Date of Termination is the date of death.

3.2.3.         If the basis of the Executive’s Involuntary Termination is the Executive’s resignation for Good Reason, the Date of Termination shall be determined by the Company, but shall not be less than two (2) weeks nor more than eight (8) weeks form the date such Notice of Termination is given.

4.      Termination from the Board and any Offices Held . Upon termination of the Executive’s employment for any reason, the Executive agrees the Executive’s membership on the Board of the Company, the board of directors of any of the Company’s Affiliates, any committees of the Board, any committees of the board of directors of any of the Company’s Affiliates and any and all offices held, if applicable, shall be automatically terminated. Executive hereby agrees to cooperate with the Company and execute any documents reasonably required by the Company or competent authorities to effect this provision.

5.      Severance Benefits upon Involuntary Termination Prior to Change in Control .    Except as provided in Sections 6 and 17 hereof, in the event of the Involuntary Termination of the Executive prior to a Change in Control, the Company shall pay to the Executive the following Pre-Change in Control Severance Payment in the following amounts and manner:

5.1.         The total payment will be equal to the product of () months (the “ Total Number of Months ”) multiplied by times monthly base pay. Provided, however, if the termination occurs within the first two (2) years of the Executive’s initial employment, the Total Number of Months shall not be less than eighteen (18) months.

5.2.         The payment will be made as follows: (i) half in a lump sum payable at or within a reasonable period of time after the Date of Termination and (ii) subject to receipt of an executed Release that has not been revoked, the remaining half in installments starting six (6) months after the Date of Termination with a final installment of all remaining amounts to be paid on or before March 15 of the calendar year following the year in which the Date of Termination occurred. The amount of each installment payment described in clause (ii) of the preceding sentence will be determined by dividing half of the total payment by 50% of the Total Number of Months. The final installment will be equal to the total payment reduced by all the amounts previously paid (i.e., the lump sum payment and the sum of all the installment payments previously paid). Notwithstanding the provisions of clause (ii) to the contrary, if the

 

 

 

 


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six month period would cause the installments to begin to be paid after the March 15 date described in the first sentence of this section 5.2, then no installments will be paid, and the second payment will be a lump sum equal to half the total payment and that payment will be paid on or before March 15 of the calendar year following the year in which the Date of Termination occurred. The installment payments (or the second lump sum payment, if applicable) are specifically designated as consideration for execution of the Release required in Section 13 and compliance with Executive’s covenants outlined in Section 13. All payments will have applicable taxes withheld and any installment payments will be paid at the same time as the normal Company payroll.

5.3.         In addition to the Pre-Change in Control Severance Payment, the Executive shall be entitled to receive the following additional benefits:

5.3.1.          Accrued Obligations . The Company shall pay to the Executive a lump sum amount in cash equal to the sum of (i) the Executive’s annual base salary through the Date of Termination to the extent not theretofore paid, (ii) an amount equal to any annual cash Incentive Compensation Awards earned (based on the performance for the most recently completed incentive period, whether that period is the prior quarter or the prior calendar year), but not yet paid, (iii) an amount equal to the value of any accrued and/or untaken vacation, if any, and (iv) reimbursement for unreimbursed business expenses, if any, properly incurred by the Executive in the performance of the Executive’s duties in accordance with the policies established from time to time by the Board. (The amounts specified in clauses (i), (ii), (iii) and (iv) shall be hereinafter referred to as the “ Pre-Change in Control Accrued Obligations ”.)

5.3.2.          Equity Based Compensation . All equity-based Incentive Compensation Awards (including, without limitation, stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance share awards or other related awards) held by the Executive shall be governed by the terms of the applicable Incentive Compensation Plan and Incentive Compensation Award agreement, and this Agreement shall have no effect upon them.

5.3.3.           Welfare Benefits . Subject to Section 11 herein, the Executive shall be eligible for health and dental coverage as provided for under COBRA, using the normal COBRA administration process of the Company. The Company will pay all costs of these benefits for a period up to, but not exceeding 18 months. If the Executive accepts employment with another employer or otherwise is no longer eligible for COBRA coverage, these welfare benefits will cease to be provided.

5.3.4.          Outplacement Benefits . The Executive shall receive outplacement assistance and services following the Date of Termination for a period of months equal to the Total Number of Months. These services will be provided by a national firm whose primary business is outplacement assistance, selected by the Company. Notwithstanding the above, if the Executive accepts employment with another employer, these outplacement benefits shall cease on the date of such acceptance.

5.3.5.          Financial Planning Services . The Executive shall receive financial planning services for a period of months equal to the Total Number of Months following the Date of Termination, at a level consistent with the benefits provided under the Company’s financial planning program for the Executive as in effect immediately prior to the Date of Termination.

5.3.6.          Annual Physical . The Executive may, within the 12 months following the Date of Termination, receive an annual physical consistent with the physical provided under the Company’s annual physical program as in effect immediately prior to the Date of Termination.

5.3.7.          General Insurance Benefit . No later than March 15 of the calendar year following the year in which the Date of Termination occurred, provided Executive has made a request for the payment described in this section 5.3.7 on such form as the Company may require. Executive shall

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supplemental executive insurance benefit provided to the Executive prior to the Executive’s Date of Termination. The Company will use its best efforts to make this payment at the time requested.

5.3.8.          Attorney’s Fees in Defense of This Agreement . Notwithstanding any provision in this Agreement, the Company shall pay all reasonable attorneys’ fees and expenses for the Executive if the Executive must engage an attorney in order to enforce this Agreement following the Executive’s Date of Termination. The Company will make payments on at least a quarterly basis based on billings presented by the Executive from his or her legal counsel.

6.      Severance Benefits upon Involuntary Termination in Connection with and after a Change in Control . Notwithstanding the provisions of Section 5 above, in the event of the Involuntary Termination of the Executive within twelve (12) months following a Change in Control, the Company shall pay to the Executive the following Post-Change in Control Severance Payment in the following amounts and manner:

6.1.         The total payment will be equal to () months multiplied by times monthly base pay. This is the Total Number of Months (the “ Total Number of Months ”). Provided, however, if the termination occurs within the first two (2) years of the Executive’s initial employment, the Total Number of Months shall not be less than eighteen (18) months.

6.2.         The payment will be made as follows: (i) half in a lump sum payable at or within a reasonable period of time after the Date of Termination and (ii) subject to receipt of an executed Release that has not been revoked, the remaining half in installments starting six (6) months after the Date of Termination with a final installment of all remaining amounts to be paid on March 15 of the calendar year following the year in which the Date of Termination occurred. The amount of each installment payment described in clause (ii) of the preceding sentence will be determined by dividing half of the total payment by 50% of the total Number of Months. The final installment will be equal to the total payment reduced by all the amounts previously paid (i.e., the lump sum payment and the sum of all the installment payments previously paid). Notwithstanding the provisions of clause (ii) to the contrary, if the six month period would cause the installments to begin to be paid after the March 15 date described in the first sentence of this section 6.2, then no installments will be paid, and the second payment will be a lump sum equal to half the total payment and that payment will be paid on March 15 of the calendar year following the year in which the Date of Termination occurred. The installment payments (or the second lump sum payment, if applicable) are specifically designated as consideration for execution of the Release required in Section 13 and compliance with Executive’s covenants outlined in Section 13. All payments will have applicable taxes withheld and any installment payments will be paid at the same time as the normal Company payroll.

6.3.         In addition to the Post-Change in Control Severance Payment, the Executive shall be entitled to receive the following additional benefits:

6.3.1.          Accrued Obligations . The Company shall pay to the Executive a lump sum amount in cash equal to the sum of (i) the Executive’s annual base salary through the Date of Termination to the extent not theretofore paid, (ii) an amount equal to any annual cash Incentive Compensation Awards earned (based on most recently completed performance period, whether that period is the prior quarter or the prior year), but not yet paid, (iii) an amount equal to the value of any accrued and/or untaken vacation, if any, (iv) reimbursement for unreimbursed business expenses, if any, properly incurred by the Executive in the performance of the Executive’s duties in accordance with the policies established from time to time by the Board and (v) an annual incentive payment at target for the year that includes the Date of Termination, prorated. (The amounts specified in clauses (i), (ii), (iii), (iv) and (v) shall be hereinafter referred to as the “ Post-Change in Control Accrued Obligations ”.)

6.3.2.          Equity Based Compensation . All equity-based Incentive Compensation Awards (including, without limitation, stock options, stock appreciation rights, restricted stock awards,

 

 


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