immediately prior to the first day of the Change in Control Period, whichever is higher, before deductions of voluntary deferrals authorized by the Executive or required by law to be withheld from the Executive by the Employer, and excludes all other extra pay such as overtime, pensions, severance payments, bonuses, stock incentives, living or other allowances, and other benefits and perquisites.
“Board” means the Board of Directors of the Company.
(d)“Bonus” means, with respect to the Executive, the average of the annual incentive bonuses awarded to the Executive in respect of the immediately preceding three years (including, for the avoidance of doubt, the grant date fair value of any annual incentive bonuses awarded in the form of cash and/or equity, but excluding for the avoidance of doubt, any equity incentive awards granted as part of the Company’s long-term equity incentive award program, which exists separate and apart from the Company’s annual short-term incentive bonus program). In the event a Change in Control occurs prior to the date on which an annual incentive bonus has been awarded to the Executive by the Company, the Executive’s Bonus shall equal one hundred fifty percent (150%) of the Executive’s Base Salary as of such date. In the event a Change in Control occurs prior to the date on which three annual incentive bonuses have been awarded to the Executive by the Company, the Executive’s Bonus shall equal either the bonus awarded to the Executive if only one annual incentive bonus has been awarded or the average of the annual incentive bonuses awarded to the Executive.
(e)“Cause” with respect to the Executive, means a termination of service based upon a finding by the Employer, acting in good faith based on upon the information then known to the Employer, that the Executive:
(i) has failed to perform job duties in a material respect without proper cause; or
(ii) been convicted of or pled guilty or nolo contendere to a felony; or
(iii) committed an act of fraud, dishonesty or gross misconduct which is materially injurious to the Employer or the Company.
Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Applicable Board (as defined below) or upon the instructions of an executive officer of the Company or the Executive’s direct or indirect supervisor, or based upon the advice of counsel or independent accountants for the Employer or the Company shall be conclusively presumed for purposes of this Agreement to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Employer or the Company. For purposes of the definition of Cause, “Applicable Board” means the Board or, if the Company is not publicly- traded, the board of directors of the ultimate parent of the Company.
A termination for Cause shall be deemed to occur on the date on which the Employer first delivers written notice to the Executive of a finding of termination for Cause; provided, however, that such termination shall only occur following the Executive’s failure to