Mr. Timothy P. Noyes
October 1, 2014
(b) By Reason of Constructive Termination. Provided you have not previously been notified of the Companys intention to terminate your employment, you may resign from employment by reason of Constructive Termination within thirty (30) days after the occurrence of one of the events specified in 9(b)(i-v) below, by giving notice of your resignation in accordance with Section 18 below. In the event of your death or disability as provided in Section 8(b)(vi) or 8(b)(vii) below your employment will terminate by reason of Constructive Termination as of the date of your death or as of the end of the one hundred eighty (180)-day period, in the case of disability.
In the event of such termination, in addition to Final Compensation, you shall be entitled to the following: (i) provided that no benefits are payable to you under a separate severance agreement as a result of such termination, an amount equal to twelve (12) months of your Base Salary, at the rate in effect on the date of termination, plus your annual Bonus in respect of any calendar year that has been earned but not yet paid (for this purpose, the Bonus earned for such calendar year shall be determined by the Board in good faith and in the same manner applicable to active executive officers of the Company, your Earned Unpaid Bonus) or, in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or three hundred sixty-five (365) days following a Corporate Transaction, eighteen (18) months of your Base Salary, as applicable, at the rate in effect on the date of termination plus, only following a Corporation Transaction, an amount equal to your Pro-Rata Bonus plus any Earned and Unpaid Bonus, less applicable withholdings and deductions, paid in a lump sum as provided below (the Severance Payment); (ii) if you are participating in the Companys group health insurance plans on the effective date of termination, and you timely elect and remain eligible for continued coverage under COBRA, or, if applicable, state insurance laws, the Company shall pay that portion of your COBRA premiums equal to the amount that the Company was paying for you under such group health insurance plans prior to the effective date of termination for twelve (12) months following (the 12-Month Tail Period) or, in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or three hundred sixty-five (365) days following a Corporate Transaction, eighteen (18) months following (the 18-Month Tail Period and, collectively with the 12-Month Tail Period, the Tail Period), as applicable, or for the continuation period for which Employee is eligible, whichever is longer and in the event the continuation period is provided by state law and is less than the applicable Tail Period, pay to you the premium payments it would have made for the remainder of the applicable Tail Period (the COBRA Premiums); (iii) fifty percent (50%) of any unvested stock options or unvested restricted shares held by you shall vest in full upon the occurrence of the Constructive Termination or a termination without Cause, accelerated to one hundred percent (100%) vesting in the event Constructive Termination or a termination without Cause occurs within thirty (30) days prior to or three hundred sixty-five (365) days following a Corporate Transaction (as defined below) (the Option Acceleration); and (iv) at your request, the post-termination exercise grace period set forth in your stock option agreements shall be extended to provide for an exercise period of up to one hundred eighty (180) days following the termination (the Option Extension); provided, however, that the Option Extension period shall not be extended beyond the period of time that would enable the stock option to remain exempt under Section 409A (as defined below).
Any obligation of the Company to you in Paragraph 9(b) is conditioned upon you signing and returning to the Company a timely and effective release of claims, in the form attached hereto as Exhibit A (the Release of Claims). The Release of Claims required for separation benefits in accordance with this Section 8(b) creates legally binding obligations on your part and the Company and its Affiliates