Common use of Change of Control Severance Payments Clause in Contracts

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two years of Employee’s then current base salary, (B) two times the Bonus Amount (as defined in Section 4(b) above), and (C) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 2%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such two-year period; (ii) the Employee shall be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the two year period following the occurrence of a Change of Control, including health and dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest and (iii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two years of Employee’s then current base salary, (B) two times the Bonus Amount (as defined in Section 4(b) abovebelow), and (C) the amount equal to the Bonus Amount (as defined below) times the fraction the numerator of which is the number of the calendar month during which the Change of Control occurred (with January being one (1) and December being twelve (12)) and the denominator of which is twelve (12) ; (D) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 23%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such two-year period; and (iiE) an additional lump sum payment equal to the reasonable estimated cost to the Employee shall be provided his of obtaining for the two-year period (whether through coverage offered to comply with the Consolidated Omnibus Budget Reconciliation Act (COBRA) or her normal otherwise) health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the two year period following the occurrence of a Change of Controlbenefits, including health medical and dental prescription drugs, dental, vision and life insurance benefits substantially similar to those coverages that Employee was receiving had immediately prior to the Change termination of Control; providedemployment, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis calculated by taking into account maximums and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest certain reductions under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest Insurance Certificates; and (iiiii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. As used herein “Bonus Amount” shall mean the current “target” amount of any cash bonus or short term cash incentive plan in effect for Employee for the calendar year in which the termination of employment occurs. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two years of Employee’s then current base salary, (B) two times the Bonus Amount (as defined in Section 4(b) above), and (C) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 23%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such two-year period; (ii) the Employee shall be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the two year period following the occurrence of a Change of Control, including health and dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest and (iii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 3020% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 3020% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two three years of Employee’s then current base salary, (B) two three times the Change of Control Bonus Amount (as defined in Section 4(b) abovehereinafter defined), and (C) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two three years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 2%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such twothree-year period; (ii) the Employee shall be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis that are non-taxable to Employee upon receipt, during the two three year period following the occurrence of a Change of Control, including health and health, dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest and (iii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that . As used herein “Change of Control Bonus Amount” shall mean the payment greater of restricted units shall not be accelerated except as provided (x) the current “target” amount of any cash bonus or short term cash incentive plan in effect for Employee or (y) the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program average of the Companylast three annual cash bonuses paid by Company to Employee.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two three years of Employee’s then current base salary, (B) two three times the Bonus Amount (as defined in Section 4(b) above), and (C) the amount equal to the Bonus Amount (as defined in Section 4(b) above) times the fraction the numerator of which is the number of the calendar month during which the Change of Control occurred (with January being one (1) and December being twelve (12)) and the denominator of which is twelve (12) ; (D) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two three years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 23%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such twothree-year period; and (iiE) an additional lump sum payment equal to the reasonable estimated cost to the Employee shall be provided his of obtaining for the three-year period (whether through coverage offered to comply with the Consolidated Omnibus Budget Reconciliation Act (COBRA) or her normal otherwise) health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the two year period following the occurrence of a Change of Controlbenefits, including health medical and dental prescription drugs, dental, vision and life insurance benefits substantially similar to those coverages that Employee was receiving had immediately prior to the Change termination of Control; providedemployment, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis calculated by taking into account maximums and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest certain reductions under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest Insurance Certificates; and (iiiii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 3020% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 3020% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two years of Employee’s then current base salary, (B) two times the Change of Control Bonus Amount (as defined in Section 4(b) abovehereinafter defined), and (C) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 2%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such two-year period; provided, however, that the Employee shall only be provided (w) eighteen months (not two years) of base salary under subsection (i)(A) above, (x) 1.5 times (not two times) the Change of Control Bonus Amount under subsection (i)(B) above, (y) a period of eighteen months (not two years) of contributions to the 401(k) plan under subsection (i)(C) above, and (z) a period of eighteen months (not two years) of normal benefits under subsection (ii) below, if the applicable Covered Change in Control Termination is made under Section 5(c)(i); (ii) the Employee shall be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis that are non-taxable to Employee upon receipt, during the two year period following the occurrence of a Change of Control, including health and health, dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest and (iii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that . As used herein “Change of Control Bonus Amount” shall mean the payment greater of restricted units shall not be accelerated except as provided (x) the current “target” amount of any cash bonus or short term cash incentive plan in effect for Employee or (y) the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program average of the Companylast three annual cash bonuses paid by Company to Employee.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two three years of Employee’s then current base salary, (B) two three times the Bonus Amount (as defined in Section 4(b) above), and (C) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two three years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 2%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such twothree-year period; (ii) the Employee shall be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the two three-year period following the occurrence of a Change of Control, including health and dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest and (iii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i1) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 3020% or more of either (A) the then then-outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then then-outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section Article 5(a), the following acquisitions shall not constitute a Change of Control: (xi) any acquisition directly from the Company, (yii) any acquisition by the Company or (ziii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii2) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that however, that, for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii3) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all a majority of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then then-outstanding shares of common stock and the combined voting power of the then then-outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 3020% or more of, respectively, the then then-outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then then-outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv4) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i1) Employee shall be paid in a lump sum on immediately upon the date which is the first day following the six (6) month anniversary occurrence of one or more of the date of the Covered Change of Control Terminationevents described in Article 5(c), an amount equal to the sum of: (Ai) [two or three as determined by the Company] years of Employee’s then current base salary, salary plus; (Bii) [two or three as determined by the Company] times Employee’s average annual bonus payable with respect to the Bonus Amount most recent three full bonus plan years ending prior to the date of a Change of Control plus; (as defined in Section 4(b) above), and (Ciii) the aggregate amount of matching contributions that would be credited to Employee under the Company’s 401(k) plan for the [two or three as determined by the Company] years following the effective date of termination in connection with (I) if Employee were to continue to participate and make the Company’s fixed maximum permissible contribution to the plan (currently 2%), (II) the Company’s performance-based contribution to the plan (currently between 0% thereunder and 4%), assuming that the applicable rate of performance-based matching contributions during such period were to equal the average rate of performance-based contributions match under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions Change of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such two-year periodControl Severance Compensation); (ii2) the Employee shall will be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the [two or three as determined by the Company] year period following the occurrence of a Change of ControlControl including, including health and but not limited to, health, dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to Control (Severance Benefits) upon the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part occurrence of one or more of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest events described in Article 5(c) ; and (iii3) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.

Change of Control Severance Payments. (a) For all purposes of this Agreement, a “Change of Control” shall be deemed to have occurred upon first to occur of: (i) The acquisition by any individual, entity or group (a “Person”) (within the meaning of Section 13(d) (3) or 14(d) (2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section 5(a), the following acquisitions shall not constitute a Change of Control: (x) any acquisition directly from the Company, (y) any acquisition by the Company or (z) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company; (ii) Any time at which individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least two-thirds (2/3) 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 a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, provided, that for this purpose, the Incumbent Board shall not include any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest 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 (any individual not included in the Incumbent Board by reason of this proviso shall be excluded permanently for purposes of determining whether the Incumbent Board has at any time ceased for any reason to constitute at least two-thirds (2/3) of the Board); (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business Combination”), in each case unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation that, 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) in substantially the same proportions as their ownership immediately prior to such Business Combination of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 30% or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation, except to the extent that such ownership existed prior to the Business Combination, and (C) at least two-thirds (2/3) of the members of the board of directors of the corporation 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 (iv) Approval by the stockholders of the Company of a complete liquidation or dissolution of the Company. (b) In the event of a Covered Change of Control Termination (as defined below), then in lieu of, and not in addition to, the severance benefits payable under Article 4 above, Employee shall receive the following: (i) Employee shall be paid in a lump sum on the date which is the first day following the six (6) month anniversary of the date of the Covered Change of Control Termination, an amount equal to the sum of: (A) two three years of Employee’s then current base salary, (B) two three times the Bonus Amount (as defined in Section 4(b) above), and (C) the aggregate amount of contributions that would be credited to Employee under the Company’s 401(k) plan for the two three years following the effective date of termination in connection with (I) the Company’s fixed contribution to the plan (currently 23%), (II) the Company’s performance-based contribution to the plan (currently between 0% and 4%), assuming that the applicable rate of performance-based contributions during such period were to equal the average rate of performance-based contributions under the plan for the three years immediately prior to the effective date of termination and (III) the Company’s matching contributions of employee contributions to the plan at the then current rate of matching contributions, assuming that Employee were to continue to participate in the plan and to make the maximum permissible contribution thereunder for such twothree-year period; (ii) the Employee shall be provided his or her normal health and welfare benefits (but not including additional stock or option grants) on a monthly basis during the two three-year period following the occurrence of a Change of Control, including health and dental and life insurance benefits Employee was receiving prior to the Change of Control; provided, however, to the extent any such benefits cannot be provided to the Employee on a non-taxable basis and the provision thereof would cause any part of the benefits to be subject to additional taxes and interest under Section 409A of the Code, then the Company’s provision of such benefits shall be deferred to the earliest date upon which such benefits can be provided without being subject to such additional taxes and interest interest; and (iii) Employee shall be entitled to exercise all stock options and stock appreciation rights previously granted to Employee by the Company, and shall be fully vested in all restricted stock, stock units and similar stock-based or incentive awards (assuming “maximum” satisfaction of any applicable performance conditions) previously granted to Employee by the Company, regardless of any deferred vesting or deferred exercise provisions of such arrangements; provided, however, that the payment of restricted units shall not be accelerated except as provided in the award agreement with respect thereto. For the avoidance of doubt, the amounts paid under this Section 5(b) are in lieu of payment to Employee under any other severance agreement, plan, policy, practice or program of the Company.