Common use of Certain Severance Payments Clause in Contracts

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three six months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof4.4 hereof (Termination without Cause), all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s 's notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three six months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; (iii) all unpaid expenses described in Section 3.4 and (iiiiv) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs, if any. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. The payment Notwithstanding the foregoing, payments of severance as required by the amounts described in clauses (i) and (ii) of this Section 5(a) may 5.1 shall be conditioned by the Company on the delivery by the Executive executive of a release of any and all claims that the Executive may have against the Company through the date of termination, which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three six months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programs; and (iv) so long as the Company has achieved its budgeted EBITDA level for the period commencing with the end of the Company’s immediately previous fiscal year through the Termination Date, an amount equal to the product of the bonus paid to the Executive in respect of the immediately preceding fiscal year pursuant to Section 3(f), times the quotient obtained by dividing (x) the number of full calendar months occurring since the end of the immediately previous fiscal year through the Termination Date, by (y) 12. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s 's notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter longer of (x) three months one month and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof5.4 hereof (Termination without Cause), or the Executive terminates this Employment pursuant to Section 5.5 hereof (Termination By Executive for Good Reason), all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s 's notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”)six months, payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Periodfor twelve months; (iii) all unpaid expenses described in Section 3.4 and (iiiiv) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs, if any. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. The payment Notwithstanding the foregoing, payments of severance as required by the amounts described in clauses (i) and (ii) of this Section 5(a) may 5.1 shall be conditioned by the Company on the delivery by the Executive executive of a release of any and all claims that the Executive may have against the Company through the date of termination, which release shall be in form and substance satisfactory to the Company. In addition, if during the Term the Company terminates this Employment Agreement pursuant to Section 5.4 hereof, or the Executive terminates this Employment pursuant to Section 5.5 hereof, all Warrants and Options issued to the Executive shall vest in full and become immediately convertible or exercisable in accordance with their respective terms.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three twelve (12) months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installmentsinstall-ments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programs; and (iv) so long as the Company has achieved its budgeted EBITDA level for the period commencing with the end of the Company’s immediately previous fiscal year through the Termination Date, an amount equal to the product of the bonus paid to the Executive in respect of the immediately preceding fiscal year pursuant to Section 3(g), times the quotient obtained by dividing (x) the number of full calendar months occurring since the end of the immediately previous fiscal year through the Termination Date, by (y) 12. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement is terminated pursuant to Section 4(d) hereofany of Sections 4.1, 4.2, 4.4 or 4.5, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s 's notice (the “"Termination Date”"), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of six (x6) three months and (y) the remainder of the Term (the applicable period being referred to as the “"Severance Period”"), payable in monthly installments; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive participated prior may continue to termination participate in as a non-employee through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. The Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of severance as required by this Section 5(a) may such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be conditioned by postponed to the earliest business day on which the Company on reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the delivery by first business day after the Executive six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a release benefit can likely be avoided by replacing the benefit with the payment of any an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and all claims that the Executive may have against agree to take other actions to avoid the Company which release imposition of 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in form and substance satisfactory a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the Companyprime or base lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement is terminated pursuant to Section 4(d) hereofany of Sections 4.1, 4.2, 4.4 or 4.5, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s 's notice (the “"Termination Date”"), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three twelve months and (y) the remainder of the Term (the applicable period being referred to as the “"Severance Period”"), payable in monthly installments; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive participated prior may continue to termination participate in as a non-employee through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. The Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of severance as required by this Section 5(a) may such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be conditioned by postponed to the earliest business day on which the Company on reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the delivery by first business day after the Executive six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a release benefit can likely be avoided by replacing the benefit with the payment of any an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and all claims that the Executive may have against agree to take other actions to avoid the Company which release imposition of 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in form and substance satisfactory a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the Companyprime or base lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of (x) three [three] months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement is terminated pursuant to Section 4(d) hereofany of Sections 4.1, 4.2, 4.4 or 4.5, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) during the first year of employment, the Base Salary on the Termination Date for the shorter of nine (x9) three months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installmentsinstallments in accordance with the Company’s normal payroll practices; after the first year of employment, the severance payments shall be the Base Salary on the Termination Date for twelve (12) months, payable in installments in accordance with the Company’s normal payroll practices; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive has participated prior in and may continue to termination participate in as a non-employee through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programsprograms in which the Executive has participated. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. The Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of severance as required by this Section 5(a) may such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be conditioned by postponed to the earliest business day on which the Company on reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the delivery by first business day after the Executive six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a release benefit can likely be avoided by replacing the benefit with the payment of any an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu of providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and all claims that the Executive may have against agree to take other actions to avoid the Company which release imposition of such 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in form and substance satisfactory a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the Companyprime or base lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement is terminated pursuant to any of Section 4(d) hereof4.1, 4.2, 4.4 or 4.5,, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice of termination (the “"Termination Date”"), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter of twelve months (x) three months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive participated prior may continue to termination participate in as a non-employee through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs. Notwithstanding the foregoing, if the Executive is terminated pursuant to Section 4.4 hereof within six months of a Change of Control (as defined in Section 8.7 hereof), then, subject to Section 6 hereof, the Severance Period shall be for six months instead of three months. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (iiiii) of this Section 5(a) 5.1 on or after the date of such violation. The Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of severance as required by this Section 5(a) may such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be conditioned by postponed to the earliest business day on which the Company on reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the delivery by first business day after the Executive six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a release benefit can likely be avoided by replacing the benefit with the payment of any an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and all claims that the Executive may have against agree to take other actions to avoid the Company which release imposition of 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in form and substance satisfactory a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the Companyprime or base lending rate then used by Citibank, N. A., in New York City and in effect as of the date the payment would otherwise have been provided.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement is terminated pursuant to Section 4(d) hereofany of Sections 4.1, 4.2, 4.4 or 4.5, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) during the first year of employment, the Base Salary on the Termination Date for the shorter of nine (x9) three months and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installmentsinstallments in accordance with the Company’s normal payroll practices; after the first year of employment, the severance payments shall be the Base Salary on the Termination Date for twelve (12) months, payable in installments in accordance with the Company’s normal payroll practices; (ii) benefits under group health health, dental and life insurance plans and such other plans referred to in which Section 3.2 that the Executive has participated prior in and may continue to termination participate in as a non-employee through the Severance PeriodPeriod including his right to continued health benefits as provided under COBRA; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programsprograms in which the Executive has participated. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) 5.1 cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) 5.1 on or after the date of such violation. The Notwithstanding the foregoing, if, based on Internal Revenue Service guidance available as of the date the payment or provision of any amount or other benefit is specified to be made under this Agreement or elsewhere, the Company reasonably determines that the payment or provision of such amount or other benefit at such specified time may potentially subject the Executive to “additional tax” under Section 409A(a)(1)(B) of the Code (together with any interest or penalties imposed with respect to, or in connection with, such tax, a “409A Tax”) with respect to the payment of severance as required by this Section 5(a) may such amount or the provision of such benefit, and if payment or provision thereof at a later date would likely avoid any such 409A Tax, then the payment or provision thereof shall be conditioned by postponed to the earliest business day on which the Company on reasonably determines such amount or benefit can be paid or provided without incurring any such 409A Tax, but in no event later than the delivery by first business day after the Executive six-month anniversary of the Executive’s termination date (the “Delayed Payment Date”). In addition, if the Company reasonably determines that such 409A Tax with respect to the provision of a release benefit can likely be avoided by replacing the benefit with the payment of any an amount in cash equal to the cost of a substantially equivalent benefit then, in lieu of providing such benefit, the Company may make such cash payment, subject to the preceding sentence. The Company and all claims that the Executive may have against agree to take other actions to avoid the Company which release imposition of such 409A Tax at such time and in such manner as permitted under Section 409A. In the event that a delay of any payment is required under this provision, such payment shall be accumulated and paid in form and substance satisfactory a single lump sum on the Delayed Payment Date together with interest for the period of delay, compounded monthly, equal to the Companyprime or base lending rate then used by CitiBank, N.A., in New York City and in effect as of the date the payment would otherwise have been provided.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereofhereof (Termination without Cause), all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter longer of (x) three twelve months and or (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid Base Salary and benefits from the Company and its employee benefit plans, including any such benefits under the Company’s pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance reasonably satisfactory to the CompanyCompany in its sole discretion.

Certain Severance Payments. If during the Term the Company terminates this Employment Agreement pursuant to Section 4(d) hereof, all compensation payable to the Executive under Section 3 hereof shall cease as of the date of termination specified in the Company’s 's notice (the “Termination Date”), and the Company shall pay to the Executive, subject to Section 6 hereof, the following sums: (i) the Base Salary on the Termination Date for the shorter longer of (x) three months one month and (y) the remainder of the Term (the applicable period being referred to as the “Severance Period”), payable in monthly installments; (ii) benefits under group health and life insurance plans in which the Executive participated prior to termination through the Severance Period; and (iii) all previously earned, accrued, and unpaid benefits from the Company and its employee benefit plans, including the issuance of shares of the Company’s common stock contemplated by Section 3(f) hereof, any such benefits under the Company’s 's pension, disability, and life insurance plans, policies, and programs. If, prior to the date on which the Company’s 's obligations under clause (i) of this Section 5(a) cease, the Executive violates Section 6 hereof, then the Company shall have no obligation to make any of the payments that remain payable by the Company under clauses (i) and (ii) of this Section 5(a) on or after the date of such violation. The payment of severance as required by this Section 5(a) may be conditioned by the Company on the delivery by the Executive of a release of any and all claims that the Executive may have against the Company which release shall be in form and substance satisfactory to the Company.