Exhibit
10.5
GROUP I
SEVERANCE
AGREEMENT
THIS SEVERANCE AGREEMENT (this
“Agreement”), dated as of February 8, 2007 is made
and entered by and between Novell, Inc., a Delaware corporation
(the “Company”), and John Dragoon (the
“Executive”).
WITNESSETH
:
WHEREAS , the Executive is a senior executive of the
Company and is expected to make major contributions to the short-
and long-term profitability, growth and financial strength of the
Company:
WHEREAS, the Board (as defined
below) has determined that appropriate arrangements should be taken
to encourage the continued attention and dedication of the
Executive to his assigned duties without distraction;
and
WHEREAS, in consideration of the
Executive’s employment with the Company, the Company desires
to provide the Executive with certain compensation and benefits set
forth in this Agreement in order to ameliorate the financial and
career impact on the Executive in the event the Executive’s
employment with the Company is terminated for a reason related to,
or unrelated to, a Change in Control (as defined below) of the
Company.
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements hereinafter
set forth and intending to be legally bound hereby, the Company and
the Executive agree as follows:
1. Certain Defined Terms. In
addition to terms defined elsewhere herein, the following terms
have the following meanings when used in this Agreement with
initial capital letters:
“Base Pay” means the
greater of(i) the Executive’s annual base salary rate,
exclusive of bonuses, commissions and other Incentive Pay, as in
effect immediately preceding the Executive’s Termination
Date, or (ii) the Executive’s highest annual base salary
rate, exclusive of bonuses, commissions and other Incentive Pay, as
in effect in any of the three (3) full calendar years
preceding the Executive’s Termination Date.
“Board” means the Board
of Directors of the Company.
“Cause”:
For purposes of Involuntary
Termination Prior to a Change in Control. means a determination by
the Company’s Chief Executive Officer or Senior Vice
President-People, in either case with legal advice and consultation
of the Company’s Senior Vice President –
General
Counsel. acting in his authority as
the Company’s general counsel, that the Executive has
committed any of the following acts:
ued violations of the
Executive’s obligations which are demonstrably willful or
deliberate on the
tive’s part after there has
been delivered to the Executive a written demand for performance
from the
any which describes the basis for
the Company’s belief that the Executive has willfully or
deliberately
ed his obligations to the
Company;
ng in willful misconduct which is
injurious to the Company or any Subsidiary;
itting a felony, an act of fraud
against or the misappropriation of property belonging to the
Company or
ibsidiary:
ing, in any material respect, terms
of any confidentiality or proprietary information agreement
between
ecutive and the Company;
or
itting a material violation of the
Company’s Code of Business Ethics or Employee Conduct and
Standards
, as either or both are in effect
from time to time by the Company.
For purposes of Involuntary
Termination Associated With a Change in Control, means a
determination by the Board that the Executive has committed any of
the following acts:
ecutive has been convicted of a
criminal violation involving fraud, embezzlement or theft in
connection
is duties or in the course of his
employment with the Company or any Subsidiary; or
ecutive has committed intentional
wrongful disclosure of secret processes or confidential information
of
mpany or any Subsidiary; and any
such act has been demonstrably and materially harmful to
the
my. For purposes of this
subparagraph (B), no act on the part of the Executive will be
deemed
tional” if it was due
primarily to an error in judgment or negligence, but will be deemed
“intentional” if
y the Executive not in good faith
and without reasonable belief that the Executive’s action was
in the best
t of the Company.
thstanding the foregoing, the
Executive will not be deemed to have been terminated for
“Cause” under
iuse (ii) unless and until
there has been delivered to the Executive a copy of a resolution
duly adopted by
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irmative vote of not less than
three-quarters of the members of the Board then in office at a
meeting of the
finding that, in the good faith
opinion of the Board, the Executive has committed an act
constituting
,” as herein defined, and
specifying the particulars thereof in detail. Prior to any such
determination, the
tive shall be provided with
reasonable notice of such pending determination and the Executive,
together
is counsel (if the Executive chooses
to have counsel present at such meeting), shall be provided with
the
unity to be heard before the Board
makes any such determination. Nothing herein will limit the right
of
ecutive or his beneficiaries to
contest the validity or propriety of any such
determination.
“Change in Control”
means the occurrence of any of the following events:
the acquisition by any individual,
entity or group (within the meaning of section 1 3(d)(3) or
14(d)(2) of the Exchange Act)(a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 25% or more of the combined voting power of the
then outstanding Voting Stock of the Company: provided, however,
that for purposes of this Section l(d)(i), the following
acquisitions will not constitute a Change in Control: (A) any
issuance of Voting Stock of the Company directly from the Company
that is approved by the Incumbent Board (as defined in Section
l(d)(ii), below). (B) any acquisition by the Company of Voting
Stock of the Company. (C) any acquisition of Voting Stock of
the Company by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, or
(D) any acquisition of Voting Stock of the Company by any
Person pursuant to a Business Combination that complies with
clauses (A), (B) and (C) of Section l(d)(iii), below; and
provided, further, that a Change in Control will not occur if any
Person becomes the beneficial owner of 25% or more of the combined
voting power of the Voting Stock of the Company solely as a result
of an issuance of Voting Stock described in clause (A) of this
Section l(d)(i) or an acquisition of Voting Stock described in
clause (B) of this Section l(d)(i) unless and until such
Person thereafter acquires beneficial ownership of Voting Stock of
the Company that causes the aggregate percent of the combined
voting power of the Voting Stock of the Company then owned
beneficially by such Person to exceed the percent of the combined
voting power of Voting Stock of the Company owned beneficially by
such Person immediately after such issuance or acquisition
described in clause (A) or (B) of this Section
l(d)(i);
individuals who, as of the date
hereof constitute the Board (the “Incumbent Board,” as
modified by this Section l(d)(ii)), cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a Director subsequent to the date
hereof whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least
two-thirds of the Directors then comprising the Incumbent Board
(either by a specific vote or by approval of the proxy statement of
the Company in which such person is named as a nominee for
director, without objection to such nomination) will be deemed to
have then been a member of the Incumbent Board, but excluding, for
this purpose, any such individual
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whose initial assumption of office
occurs as a result of an actual or threatened election contest
(within the meaning of Rule l4a-11 of the Exchange Act) with
respect to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board;
consummation of a reorganization,
merger or consolidation, a sale or other disposition of all or
substantially all of the assets of the Company, or other
transaction (each, a “Business Combination”), unless,
in each case, immediately following such Business Combination,
(A) all or substantially all of the individuals and entities
who were the beneficial owners of Voting Stock of the Company
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the combined voting power
of the then outstanding shares of Voting Stock of the entity
resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction owns
the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries),
(B) no Person (other than the Company; such entity resulting
from such Business Combination; any employee benefit plan (or
related trust) sponsored or maintained by the Company, any
Subsidiary or such entity resulting from such Business Combination;
or any Person who immediately prior to such Business Combination
beneficially owned directly or indirectly 25% or more of the
combined voting power of the voting stock of the Company and whose
ownership of such Voting Stock did not result in a Change in
Control under Section l(d)(i)) beneficially owns, directly or
indirectly, 25% or more of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from
such Business Combination, and (C) at least a majority of the
members of the Board of Directors of the entity resulting from such
Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement or of the action of
the Board providing for such Business Combination; or approval by
the stockholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and
(C) of Section 1 (d)(iii).
“COBRA” means the
Consolidated Omnibus Budget Reconciliation Act of 1986. as
amended.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Constructive Termination
Associated With a Change in Control” means the termination of
the Executive’s employment with the Company by the Executive
as a result of the occurrence of one of the following events,
without the Executive’s express written consent, as a result
of a Change in Control:
the failure to elect or reelect or
otherwise to maintain the Executive in the office or the position,
or an equivalent office or position, of or with the Company and/or
a Subsidiary (or any successor thereto by operation of law or
otherwise), as the case may be, which the Executive held
immediately prior to a Change in Control, or the removal of the
Executive as a Director of the Company and/or a Subsidiary (or any
successor thereto) if the Executive has been a Director of the
Company and/or a Subsidiary immediately prior to the Change in
Control;
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the failure of the Company to remedy
any of the following within ten (10) business days after
receipt by the Company of written notice thereof from the
Executive: (A) an adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties attached
to the position with the Company and any Subsidiary which the
Executive held immediately prior to the Change in Control,
(B) a reduction in the aggregate of the Executive’s Base
Pay, Incentive Pay, and Equity Compensation, or (C) the
termination or denial of the Executive’s rights to Employee
Benefits or a reduction in the scope or value thereof;
a determination by the Executive
(which determination will be conclusive and binding upon the
parties hereto provided it has been made in good faith and in all
events will be presumed to have been made in good faith unless
otherwise shown by the Company by clear and convincing evidence)
that a change in circumstances has occurred following a Change in
Control, including, without limitation, a change in the scope of
the business or other activities for which the Executive was
responsible immediately prior to the Change in Control, which has
rendered the Executive unable to carry out, has hindered the
Executive’s performance of, or has caused the Executive to
suffer a reduction in, any of the authorities, powers, functions,
responsibilities or duties attached to the position held by the
Executive immediately prior to the Change in Control, which
situation is not remedied within ten (10) business days after
written notice to the Company from the Executive of such
determination;
the liquidation, dissolution,
merger, consolidation or reorganization of the Company or transfer
of all or substantially all of its business and/or assets, unless
the successor or successors (by liquidation, merger, consolidation,
reorganization, transfer or otherwise) to which all or
substantially all of its business and/or assets have been
transferred (by operation of law or otherwise) assumes all duties
and obligations of the Company under this Agreement pursuant to
Section 15(a);
a requirement by the Company that
the Executive have his principal location of work changed to any
location that is in excess of thirty-five (35) miles from the
location thereof immediately prior to the Change in Control. or
that the Executive travel away from his office in the course of
discharging his responsibilities or duties hereunder at least 20%
more (in terms of aggregate days in any calendar year or in any
calendar quarter when annualized for purposes of comparison to any
prior year) than was required of the Executive in any of the three
(3) full years immediately prior to the Change in Control;
pr
without limiting the generality or
effect of the foregoing, any material breach of this Agreement by
the Company or any successor thereto which is not remedied by the
Company within ten (10) business days after receipt by the
Company of written notice from the Executive of such
breach.
In no event shall the termination of
the Executive’s employment with the Company on account of the
Executive’s death or Disability or because the Executive
engaged in conduct constituting Cause be deemed to be a
Constructive Termination Associated With a Change in
Control.
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“Constructive Termination
Prior to a Change in Control” means the termination of the
Executive’s employment with the Company by the Executive as a
result of the occurrence of one of the following events, without
the Executive’s express written consent:
a comprehensive and substantial
reduction in all or most of the Executive’s primary duties,
authority and responsibilities compared to the Executive’s
duties, authority and responsibilities immediately prior to such
reduction;
a significant reduction in the
Executive’s Base Pay compared to the Executive’s Base
Pay in effect immediately prior to such reduction; provided,
however, that a reduction in the Executive’s Base Pay of less
than twenty percent (20%) or a reduction in the
Executive’s Base Pay that is part of an overall reduction in
compensation also applied to other senior executives of the Company
as a result of decreased business performance by the Company or one
of its business units, shall not constitute a Constructive
Termination Prior to a Change in Control; or
the failure of the Company to obtain
the assumption of this Agreement by any successors.
In no event shall the termination of
the Executive’s employment with the Company on account of the
Executive’s death or Disability or because the Executive
engaged in conduct constituting Cause be deemed to be a
Constructive Termination Prior to a Change in Control.
“Disability” means the
Executive becomes permanently disabled within the meaning of, and
begins actually to receive disability benefits pursuant to, the
long-term disability plan in effect for, or applicable to, the
Executive.
“Employee Benefits”
means the perquisites, benefits and service credit for benefits as
provided under any and all employee retirement income and welfare
benefit policies, plans, programs or arrangements in which the
Executive is entitled to participate, including, without
limitation, any stock option, performance share, performance unit,
stock purchase, stock appreciation, savings, pension, supplemental
executive retirement, or other retirement income or welfare
benefit, deferred compensation, incentive compensation, group or
other life, health, medical/hospital or other insurance (whether
funded by actual insurance or self-insured by the Company or a
Subsidiary). disability, salary continuation, expense reimbursement
and other employee benefit policies, plans, programs or
arrangements that may now exist or any equivalent successor
policies, plans, programs or arrangements that may be adopted
hereafter by the Company or a Subsidiary, providing perquisites,
benefits and service credit for benefits at least as great in the
aggregate as are payable thereunder.
“Equity Compensation”
means any stock option, stock appreciation, stock purchase,
restricted stock, restricted stock unit, long term incentive cash
bonus award or any other kind of equity-based plan, program,
arrangement or grant regardless of whether the form of distribution
is in stock or cash.
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“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Incentive Pay” means
the greater of: (i) the Executive’s maximum Target Bonus
for which the Executive was eligible during the period that
includes the Termination Date, or (ii) the highest aggregate
bonus or incentive payment paid to the Executive during any of the
three (3) full calendar years prior to his Termination Date.
For purposes of this definition, “Target Bonus” means
the annual bonus, incentive, commission or other sales incentive
compensation, or comparable incentive payment opportunity which, in
the sole discretion of the Company, is deemed to constitute a
Target Bonus, in addition to Base Pay, for which the Executive was
eligible to receive, but did not receive prior to his Termination
Date, in regard to services rendered in the year covered by the
Executive’s Termination Date and is to be made pursuant to
any bonus, incentive, profit-sharing, performance, discretionary
pay or similar agreement, policy, plan, program or arrangement
(whether or not funded) of the Company or a Subsidiary, or any
successor thereto. For purposes of this definition,
“Incentive Pay” does not include any Equity
Compensation, one time bonus or payment (including, but not limited
to, any sign-on bonus), any amounts contributed by the Company for
the benefit of the Executive to any qualified or nonqualified
deferred compensation plan, whether or not provided under an
arrangement described in the prior sentence, or any amounts
designated by the parties as amounts other than Incentive
Pay.
“Involuntary Termination
Associated With a Change in Control” means the termination of
the Executive’s employment related to a Change in Control:
(i) by the Company for any reason other than Cause, the
Executive’s death or the Executive’s Disability, or
(ii) on account of a Constructive Termination Associated with
a Change in Control.
“Involuntary Termination Prior
to a Change in Control” means the termination of the
Executive’s employment unrelated to a Change in Control:
(i) by the Company for any reason other than Cause, the
Executive’s death or the Executive’s Disability, or
(ii) on account of a Constructive Termination Prior to a
Change in Control.
“Restricted Business”
means,
if the Executive is entitled to
severance benefits under this Agreement on account of an
Involuntary Termination Prior to a Change in Control. (A) the
design, development, manufacture, marketing or support of local or
wide area network products, computer operating systems,
applications products, software products or services that enable
organizations to more effectively conduct business using the Web,
or any other software products of the type designed, developed,
manufactured, sold or supported by the Company or as proposed to he
designed, developed, manufactured, sold or supported by the Company
pursuant to a development project that is actually being pursued
during the term of this Agreement; (B) any business that
performs technology and consulting services that help businesses
develop and accelerate their transition to Internet-based
c-business solutions and processes, or management services that
assist businesses in improving their operating processes; or
(C) any business that competes directly or indirectly with the
hardware, software or consulting businesses of the
Company.
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if the Executive is entitled to
severance benefits under this Agreement on account of an
Involuntary Termination Associated With a Change in Control, any
business function with a direct competitor of the Company that is
substantially similar to the business function performed by the
Executive with the Company immediately prior to his Termination
Date.
“Restricted Territory”
means the counties, towns, cities or states of any country in which
the Company operates or does business.
“Severance Period” means
the twelve (12) month period after the Executive’s
Termination Date.
“Subsidiary” means any
Company controlled affiliate.
“Termination Date” means
the last day of the Executive’s employment with the
Company.
“Termination of
Employment” means, except as provided in the following
sentence, the termination of the Executive’s active
employment relationship with the Company on account of an
Involuntary Termination Prior to a Change in Control or an
Involuntary Termination Associated With a Change in Control. For
purposes of the non-solicitation provision of Section 11 of
the Agreement, the term “Termination of Employment”
shall mean the termination of the Executive’s employment
relationship with the Company for any reason, including, but not
limited to, the Executive’s Involuntary Termination Prior to
a Change in Control, Involuntary Termination Associated With a
Change in Control, voluntary termination, termination on account of
Disability, or termination by the Company for Cause.
“Voting Stock” means
securities entitled to vote generally in the election of
directors.
2. Termination Prior to a Change
in Control .
Involuntary Termination Prior to
a Change in Control . In
the event the Executive’s employment is terminated on account
of an Involuntary Termination Prior to a Change in Control, the
Executive shall be entitled to the benefits provided in subsection
(b) of this Section 2.
Compensation and Benefits Upon
Involuntary Termination Prior to a Change in Control
. Subject to the provisions of
Section 5 hereof, in the event a termination described in
subsection (a) of this Section 2 occurs, the Company
shall pay and provide to the Executive after his Termination
Date:
150% of his Base Pay. Unless a
different payment stream is made pursuant to Section 13(b) of
this Agreement, such Base Pay shall be paid to the Executive in
equal installments over the Severance Period, consistent with the
Company’s normal payroll practices, commencing with the first
administratively practicable payroll period that occurs after the
period during which the Executive’s right to revoke his
acceptance to the terms of the Release has expired.
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The Executive shall receive his pro
rated Incentive Pay for the year in which his Termination of
Employment occurs. The pro rated Incentive Pay shall be based on
the Executive’s Incentive Pay for the year in which the
Executive’s Termination Date occurs, multiplied by a
fraction, the numerator of which is the number of days during which
the Executive was employed by the Company in the year of his
termination and the denominator of which is 365. Unless a different
payment stream is made pursuant to Section 13(b) of this
Agreement, such pro rated Incentive Pay shall be paid to the
Executive in equal installments over the Severance Period,
consistent with the Company’s normal payroll practices,
commencing with the first administratively practicable payroll
period that occurs after the period during which the
Executive’s right to revoke his acceptance to the terms of
the Release has expired.
Commencing on the month immediately
following the month in which his Termination Date occurs, the
Executive shall continue to receive for a twelve (12) month
period the medical and dental coverage in effect on his Termination
Date (or generally comparable coverage) for himself and, where
applicable, his spouse and dependents, at the same premium rates as
may be charged from time to time for employees of the Company
generally, as if the Executive had continued in employment with the
Company during such period; provided, however, that in the event
that such continuation coverage violates applicable law or results
in a material adverse tax effect to the Company or the Executive,
the Company shall pay the Executive cash in lieu of such coverage
in an amount equal to the Executive’s after-tax cost of
continuing comparable coverage, where such coverage may not be
continued by the Company (or where such continuation would
adversely affect the tax status of the plan pursuant to which the
coverage is provided). If the Executive does not receive the cash
payment described in the preceding sentence, the Company shall take
all commercially reasonable efforts to provide that the COBRA
health care continuation coverage period under section 4980B of the
Code, shall commence immediately after the foregoing twelve
(12) month period, with such continuation coverage continuing
until the earlier of (A) the end of the applicable COBRA
health care continuation coverage period or (B) the date on
which the Executive is covered by the medical and dental coverage
of his successor employer, if any.
With respect to any Company stock
options held by the Executive as of his Termination Date, the
Company shall accelerate the vesting of that portion of the
Executive’s stock options, if any, which would have vested
and become exercisable within the one (1) year period after
the Executive’s Termination Date, such options, plus any
other options that previously became exercisable and have not
expired or been exercised, shall remain exercisable,
notwithstanding anything in any other agreement governing such
options, for the longer of (A) a period of six (6) months
after the Executive’s Termination Date, or (B) the
period set forth in the award agreement covering the option
(collectively, the “Pre-Change in Control Option Expiration
Date”); provided, however, that in no event will the option
be exercisable beyond its original term or, if not addressed in the
grant agreement, then not later than the latest date that will
avoid adverse tax consequences to the Executive (if such date is
earlier than the Pre-Change in Control Option Expiration
Date).
With respect to any shares of
Company common stock held by the Executive as of his Termination
Date that are subject to the Company’s repurchase right upon
termination of the
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Executive’s employment
(“Restricted Stock”), the Company shall waive such
repurchase rights as to the number of shares of Restricted Stock
that would have vested within the one (1) year period after
the Executive’s Termination Date.
To cover the cost of outplacement
assistance services for the Executive that are actually provided by
an outplacement agency selected by the Executive, for which the
Company provides prior approval, with such approval not to be
unreasonably withheld, in an amount not to exceed twenty percent
(20%) of the Executive’s Base Pay.
The Executive shall receive any
amounts earned, accrued or owing but not yet paid to the Executive
as of his Termination Date, payable in a lump sum, and any benefits
accrued or earned in accordance with the terms of any applicable
benefit plans and programs of the Company.
3. Termination Associated With a
Change in Control .
Involuntary Termination
Associated With a Change in Control . In the event the Executive’s employment
is terminated after, or in connection with, a Change in Control, on
account of (i) an Involuntary Termination Associated With a
Change in Control within the two (2) year period after the
Change in Control, or (ii) an Involuntary Termination
Associated With a Change in Control that occurs (A) not more
than six (6) months prior to the date on which a Change in
Control occurs or (B) following the commencement of any
discussion with a third person that ultimately results in a Change
in Control, the Executive shall be entitled to the benefits
provided in subsection (b) of this Section 3. If the
Executive is entitled to benefits described in this Section 3
by reason of clause (a)(ii) above, the Executive shall receive the
compensation and benefits described in Section 2(b) above
after his Termination of Employment, in accordance with the
provisions of Section 2(b), regardless of whether the Change
in Control actually occurs, and the Executive shall receive the
additional compensation and benefits described in Section 3(b)
below only if the Change in Control is consummated and shall
receive such additional amounts after the consummation of the
Change in Control, in accordance with the provisions of
Section 3(b) below. For purposes of subsection 3(a)(ii)(B)
above, to be eligible to receive amounts described in
Section 3(b) below, the Change in Control must be consummated
within the twelve (12) month period following the
Executive’s Termination Date, except in circumstances
pursuant to which the consummation of the Change in Control is
delayed, through no failure of the Company or the third person, by
a governmental or regulatory authority or agency with jurisdiction
over the matter, or as a result of other similar circumstances. In
such a circumstance, the remaining of the twelve (12) month
period shall be tolled and shall recommence upon termination of the
delaying event.
Compensation and Benefits Upon
Involuntary Termination Associated With a Change in
Control . Subject to the
provisions of Section 5 hereof, in the event a termination
described in subsection (a) of this Section 3 occurs, the
Company shall pay and provide to the Executive after his
Termination Date:
Lump sum cash payment equal to
(A) two (2) times Base Pay, plus (B) two
(2) times Incentive Pay. Unless the payment is delayed
pursuant to Section 13(b) of this Agreement,
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this lump sum cash payment shall he
paid to the Executive within thirty (30) days after the
Executive’s Termination Date (or the end of the revocation
period for the Release, if later).
Lump sum cash payment equal to
Executive’s pro rated Incentive Pay for the year in which his
Termination of Employment occurs. The pro rated Incentive Pay shall
be based on the Executive’s Incentive Pay for the year in
which the Executive’s Termination Date occurs, multiplied by
a fraction, the numerator of which is the number of days during
which the Executive was employed by the Company in the year of his
termination and the denominator of which is 365. Unless the payment
is delayed pursuant to Section 13(h) of this Agreement, this
lump sum payment shall be paid to the Executive within thirty
(30) days after the Executive’s Termination Date (or the
end of the revocation period fir the Release, if later).
Commencing with the month
immediately following the month in which his Termination Date
occurs, the Executive shall continue to receive for a twenty-four
(24) month period the medical and dental coverage in effect on
his Termination Date (or generally comparable coverage) for himself
and, where applicable, his spouse and dependents, at the same
premium rates as may be charged from time to time for employees
generally, as if the Executive had continued in employment during
such period; provided. however, that in the event that such
continuation coverage violates applicable law or results in a
material adverse tax effect to the Company or the Executive, the
Company shall pay the Executive cash in lieu of such coverage in an
amount equal to the Executive’s after-tax cost of continuing
comparable coverage, where such coverage may not be continued by
the Company (or where such continuation would adversely affect the
tax status of the plan pursuant to which the coverage is provided).
If the Executive does not receive the cash payment described in the
preceding sentence, the Company shall take all commercially
reasonable efforts to provide that the COBRA health care
continuation coverage period under section 4980B of the Code, shall
commence immediately after the foregoing twenty-four
(24) month period, with such continuation coverage continuing
until the earlier of(A) the end of the applicable COBRA health care
continuation coverage period or (B) the date on which the
Executive is covered by the medical and dental coverage of his
successor employer, if any.
Lump sum cash payment equal to the
total amount that the Executive would have received under the
Company’s 40 1(k) plan as a Company match if the Executive
was eligible to participate in the Company’s 401(k) plan for
the twenty-four (24) month period after his Termination Date
and he contributed the maximum amount to the plan for the match.
Unless the payment is delayed pursuant to Section 13(b) of
this Agreement, this lump sum payment shall be paid to the
Executive within thirty (30) days after the Executive’s
Termination Date (or the end of the revocation period for the
Release, if later).
Lump sum cash payment equal to the
total premiums that the Company would have paid under the
Executive’s split-dollar life insurance policy, if any, that
is in effect immediately prior to his Termination Date, if the
Executive was employed by the Company for the twenty-four
(24) month period following the Executive’s Termination
Date; provided, however, that if the remaining length of the term
of the split-dollar arrangement pursuant to which the Company must
make premium payments is less than the foregoing twenty-four
(24) month period, the Executive shall only receive a lump sum
cash payment equal to the remaining
11
Company premiums for the term of the
arrangement. Unless payment is delayed pursuant to
Section 13(b) of this Agreement, this lump sum payment shall
be paid to the Executive within thirty (30) days after the
Executive’s Termination Date (or the end of the revocation
period for the Release, if later). Notwithstanding the foregoing,
no payment shall be made to the Executive pursuant to this clause
(v) if on the Executive’s Termination Date, either the
Executive does not have a split-dollar life insurance policy with
the Company or the Company has no obligations to make premium
contributions to the Executive’s split-dollar life insurance
policy.
Lump sum cash payment equal to
twenty percent (20%) of the Executive’s Base Pay in
order to cover the cost of outplacement assistance services for the
Executive. Unless payment is delayed pursuant to Section 13(b)
of this Agreement, this lump sum payment shall be paid to the
Executive within thirty (30) days after the Executive’s
Termination Date (or the end of the revocation period for the
Release, if later).
The Executive shall receive any
amounts earned, accrued or owing but not yet paid to the Executive
as of his Termination Date, payable in a lump sum, and any benefits
accrued or earned in accordance with the terms of any applicable
benefit plans and programs of the Company.
Equity Compensation
. Notwithstanding any provision to
the contrary in any applicable plan, program or agreement, or any
contrary provision in this Agreement in the event that either or
both of the following occur:
a Change in Control in which the
Executive’s employment is terminated on account of an
Involuntary Termination Associate
