Incumbent Board, but excluding for this purpose any such individual whose appointment or nomination to the Board occurs as a result of an actual or threatened election contest with respect to the election or removal of any member of the Board, or other actual or threatened solicitation of proxies or consents, by or on behalf of a Person other than a majority of the then Incumbent Board; or
(iii)a complete liquidation or dissolution of the Company, or the sale or other disposition of all or substantially all of the assets of the Company (in one or more transactions).
(c)“Constructive Termination” means the happening of any of the following events (each an “Adverse Action”) without the written consent of the Officer:
(i)a material diminution of the Officer’s authorities, duties or responsibilities, including, without limitation, title and reporting relationship;
(ii)a material change in the geographic location at which the Officer is primarily required to perform services for the Company;
(iii)a material reduction in the Officer’s base compensation; or
(iv)any other action or inaction that constitutes a material breach by the Company under its Letter Agreement with the Officer;
provided, however, that the Officer shall not be deemed to have terminated employment on account of a Constructive Termination unless:
(x)within ninety (90) days after the Adverse Action, the Officer notifies the Company in writing of his desire to terminate employment on account of such Constructive Termination;
(y)following its receipt of such notice, the Company has thirty (30) days to remedy the Adverse Action; and
(z)the Company fails to remedy such event by the end of such thirty (30) day period and the Officer’s termination of employment occurs no later than two (2) years after the Adverse Action.
(d)The “Exchange Act” shall mean the 1934 Securities Exchange Act, as amended.
2.Constructive Termination or Termination after Change of Control. If, within twenty-four (24) months after a Change of Control, the Company terminates the Officer’s employment without Cause or the Officer’s employment terminates on account of a Constructive Termination, the following provisions shall apply:
(a)The Company shall pay to the Officer, in lieu of any other payment rights under the Letter Agreement (except as provided in paragraph (c), below), an amount equal to 1.5