Common use of Compensation Following Termination Prior to the End of the Term Clause in Contracts

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s employment hereunder is terminated during but prior to the expiration of the Term, the Executive will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement): (a) In the event that the Executive’s employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive (or the Executive’s estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below); and (6) payment of a lump sum severance payment equal to the “Severance Amount” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive at the time of termination of the Executive’s employment prior to the end of the Term, the Executive will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Mr. Crawford' employment hereunder is terminated during but prior to the expiration end of the Termxxx Xxxx, the Executive Xr. Crawford will be entitled only to the following compensation and benefits under this Agreement upon xxxxxxxx xxon such termination (together with such other provisions that may be set forth in the Stock Option Agreement):termination: (a) In the event that the Executive’s Mr. Crawford' employment hereunder is terminated during but prior to the expiration of the expiraxxxx xx xxx Term by reason of the Executive’s Mr. Crawford' death or Total Disability, pursuant to Section 4(a6(a) or 4(b0(x), the Company XXXX shall pay the following amounts to the Executive Mr. Crawford (or the Executive’s Mr. Crawford' estate, as the case may be), ): (1) anx xxxxxxx xxt unpxxx Xxxx Xxxary and Bonus (as determined pursuant to Section 3) for services rendered to the date of termination; (2) any accrued but unpaid amounts required to be paid as soon as practicable following pursuant to Section 5(a) or 5(b); and (3) any vacation accrued and unused to the date of such termination termination. (except as stated otherwise belowb) In the event that Mr. Crawford' employment hereunder is terminated prior to the expiraxxxx xx xxx Term by GMAI for cause, pursuant to Section 6(c), but in no event prior GMAI shall pay the following amounts to or later than the time such payment would not be subject to tax under Code Section 409AMr. Crawford: (1) any accrued but unpaid Base Salary (as determinex xxxxxxxx xo Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses amounts required to be reimbursed paid pursuant to Section 3(d5(a) or 5(b); and (43) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Mr. Crawford' employment hereunder is terminated prior to the expiration of the Term by the Company GMAI without Cause pursuant Cauxx xxxxxxxx to Section 4(d6(d), or by the Executive Mr. Crawford with Good Reason pursuant to Section 4(e6(e), the Company GMAI shall pay the following pxx xxx xxxxxwing amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the CodeMr. Crawford: (1) any accrued but unpaid Base Salary (as determinex xxxxxxxx xo Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet any accrued but unpaid amounts required to be paid for any fiscal year ending prior pursuant to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continuedSection 5(a) or 5(b); (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below); and (64) payment of a lump sum severance payment equal to the “Severance Amount” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose50,000, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before payable in one lump-sum payment within 30 days following termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Mr. Crawford may be entitled upon termination pursuant to the plans, policies and xxxxxxxx xxd arrangements referred to in Section 3(e5(b) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Mr. Crawford at the time of termination of the Executive’s Mr. Crawford' employment prior to the xxxxx xx xxx end of the Term, the Executive will not be Mr. Crawford xxxx xxx xx entitled to receive any other compensation, or to participate xx xx xxxxxcipate in any other plan, arrangement or benefit, with respect to any future period after the his termination of his employmentor resignation. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the expiration end of the Term, the Executive Xx. Xxxxxxxx will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement):termination: (a) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxxxxx’x death or Total Disability, if he becomes Totally Disabled pursuant to Section 4(aSections 6(a) or 4(b6(b), the respectively, Company shall pay the following amounts to the Executive Xx. Xxxxxxxx (or the Executive’s to Xx. Xxxxxxxx’x estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A:): (1) any accrued but unpaid Base Salary (as determined pursuant to Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(dSections 5(a) or 5(b);, payable within thirty (30) days following Xx. Xxxxxxxx’x submission of vouchers in accordance with Company’s standard business procedures; and (43) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s employment terminated, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c6(c) or by the Executive without Good Reason (except pursuant to Section 4(e6(c)(6), the which is covered by Section 7(c) below), or by Xx. Xxxxxxxx without Good Reason, Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code;Xx. Xxxxxxxx: (1) any accrued but unpaid Base Salary (as determined pursuant to Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(dSections 5(a) or 5(b), payable within thirty (30) days following Xx. Xxxxxxxx’x submission of vouchers in accordance with Company’s standard business procedures; and (43) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d6 (d), or by the Executive Xx. Xxxxxxxx with Good Reason pursuant to Section 4(e6(e), the or by Company pursuant to Section 6(c)(6), Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the CodeXx. Xxxxxxxx: (1) any accrued but unpaid Base Salary (as determined pursuant to Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(dSections 5(a) or 5(b), payable within thirty (30) days following Xx. Xxxxxxxx’x submission of vouchers in accordance with Company’s standard business procedures; (43) any vacation accrued and unused to the date of termination; (54) continued payments of Base Salary until the earlier of (i) the expiration of the Term or (ii) the one year anniversary of the date of termination of Xx. Xxxxxxxx’x employment, payable in installments in accordance with Company’s standard payroll practices. Except as otherwise required by law, the payment of any amounts pursuant to this Section 7(c)(5) shall be due and payable only after the delivery by Xx. Xxxxxxxx to Company of a pro rata (based on the number release in form and substance reasonably satisfactory to Company of days during the fiscal year of termination that the Executive was employed) portion any and all claims Xx. Xxxxxxxx may have against Company and its directors, officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives as of the Performance Bonus, if any, for date of such release arising out of or related to Xx. Xxxxxxxx’x employment by Company and the fiscal year in which the Executive’s employment terminated, payable as and when termination of such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below); and (6) payment of a lump sum severance payment equal to the “Severance Amount” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paidemployment. (d) The benefits to which the Executive Xx. Xxxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e5(b) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. Xxxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxxx’x employment prior to the end of the Term, the Executive Xx. Xxxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the his termination of his employmentor resignation. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. XxXxxx’x employment hereunder is terminated during but prior to the expiration end of the Term, the Executive Xx. XxXxxx will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement):termination: (a) In the event that the Executive’s Xx. XxXxxx’x employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. XxXxxx’x death or Total Disability, if he becomes Totally Disabled pursuant to Section 4(aSections 6(a) or 4(b6(b), the respectively, Company shall pay the following amounts to the Executive Xx. XxXxxx (or the Executive’s to Xx. XxXxxx’x estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A:): (1) any accrued but unpaid Base Salary (as determined pursuant to Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(dSections 5(a) or 5(b), payable within thirty (30) days following Xx. XxXxxx’x submission of vouchers in accordance with Company’s standard business procedures; (43) any vacation accrued and unused to the date of termination; and (54) payment of a pro rata (based on Percentage Bonus through the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, date for the fiscal year in which the Executive’s employment terminatedtermination occurs, payable as and when such bonus would have been paid had the Executive’s employment continued based on actual performance achieved for the fiscal year within sixty (subject to Section 7(k60) below). In addition, for a period days of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Companytermination. (b) In the event that the Executive’s Xx. XxXxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) 6(c), or by the Executive Xx. XxXxxx without Good Reason pursuant to Section 4(e)Reason, the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code;Xx. XxXxxx: (1) any accrued but unpaid Base Salary (as determined pursuant to Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(dSections 5(a) or 5(b), payable within thirty (30) days following Xx. XxXxxx’x submission of vouchers in accordance with Company’s standard business procedures; and (43) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. XxXxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d6(d), or by the Executive Xx. XxXxxx with Good Reason pursuant to Section 4(e6(e), the Company shall pay the following amounts to the Executive, to be paid as soon as practicable following the date of such termination (except as stated otherwise below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the CodeXx. XxXxxx: (1) any accrued but unpaid Base Salary (as determined pursuant to Section 3) for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s employment, payable as and when such Performance Bonus would have been paid had the Executive’s employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(dSections 5(a) or 5(b), payable within thirty (30) days following Xx. XxXxxx’x submission of vouchers in accordance with Company’s standard business procedures; (43) any vacation accrued and unused to the date of termination; (54) payment of a pro rata (based on Percentage Bonus through the number of days during the fiscal year of termination that the Executive was employed) portion of the Performance Bonus, if any, date for the fiscal year in which the Executive’s employment terminatedtermination occurs, payable as and when such bonus would have been paid had within sixty (60) days of the Executive’s employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)date of termination; and (65) continued payments of Base Salary until the one year anniversary of the date of termination of Xx. XxXxxx’x employment, payable in installments in accordance with Company’s standard payroll practices. Except as otherwise required by law, the payment of a lump sum severance payment equal any amounts pursuant to the “Severance Amount” (subject to this Section 7(k7(c)(5) below). The “Severance Amount” shall be an amount equal due and payable only after the delivery by Xx. XxXxxx to Company of a release in form and substance reasonably satisfactory to Company of any and all claims Xx. XxXxxx may have against Company and its directors, officers, employees, subsidiaries, affiliates, stockholders, successors, assigns, agents and representatives as of the greater date of $500,000 such release arising out of or 100% related to Xx. XxXxxx’x employment by Company and the termination of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paidsuch employment. (d) In the event Xx. XxXxxx’x employment hereunder is terminated by Company pursuant to Section 6(c)(6), Xx. XxXxxx shall receive, in addition to any other payments he is entitled to hereunder, continued payments of Base Salary until the one year anniversary of the date of termination of Xx. XxXxxx’x employment, payable in installments in accordance with Company’s standard payroll practices, unless Xx. XxXxxx is offered an opportunity to retain his then current position and compensation package with the new owner of Company or its business, in which event no severance pay shall be paid. (e) The benefits to which the Executive Xx. XxXxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e5(b) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (ef) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. XxXxxx at the time of termination of the Executive’s Xx. XxXxxx’x employment prior to the end of the Term, the Executive Xx. XxXxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the his termination of his employmentor resignation. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated during but prior to the expiration of the Term, the Executive Xx. Xxxxxxx will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement and Restricted Stock Units Agreement): (a) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxxxx' death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxxxx (or the Executive’s Xx. Xxxxxxx' estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxx' employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year. In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s Xx. Xxxxxxx' employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive Xx. Xxxxxxx and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive Xx. Xxxxxxx or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) Xx. Xxxxxxx co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxxxx without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Xx. Xxxxxxx with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxx' employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year; and (6) payment of a lump sum severance payment equal to the “Severance Amount.” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 1,000,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company A-Xxxx to the ExecutiveXx. Xxxxxxx, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Xx. Xxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e3(g) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. Xxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxx' employment prior to the end of the Term, the Executive Xx. Xxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the expiration of the Term, the Executive Xx. Xxxxxxxx will be entitled only to the following compensation and benefits under this Agreement upon and following such termination (together with such other provisions that may be set forth in the Stock Option Agreement):), in lieu of any further compensation under Section 3: (a) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxxxxx’x death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxxxxx (or the Executive’s Xx. Xxxxxxxx’x estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxxx’x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Companyyear. (b) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxxxxx without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Xx. Xxxxxxxx with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated unless otherwise indicated below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxxx’x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year; and (6) payment continued payments of a lump sum severance payment equal to Base Salary until the “Severance Amount” (one-year anniversary of the date of termination of Xx. Xxxxxxxx’x employment, payable in installments in accordance with the Company’s standard payroll practices, subject to Section 7(k) below5(f). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Xx. Xxxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. Xxxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxxx’x employment prior to the end of the Term, the Executive Xx. Xxxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the stated expiration of the Term, the Executive Xx. Xxxxxxxx will be entitled only to the following compensation and benefits under this Agreement upon and following such termination (together with such other provisions that may be set forth in the Stock Option Agreement):), in lieu of any further compensation under Section 3: (a) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the stated expiration of the Term by reason of the Executive’s Xx. Xxxxxxxx’x death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxxxxx (or the Executive’s Xx. Xxxxxxxx’x estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxxx’x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Companyyear. (b) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxxxxx without Good Reason pursuant to Section 4(e4(d), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Mr. Gjerdrum with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated unless otherwise indicated below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxxx’x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year; and (6) payment continued payments of a lump sum severance payment equal to Base Salary until the “Severance Amount” (one-year anniversary of the date of termination of Xx. Xxxxxxxx’x employment, payable in installments in accordance with the Company’s standard payroll practices, subject to Section 7(k) below5(f). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Xx. Xxxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, benefit or fringe benefit plan applicable to the Executive Xx. Xxxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxxx’x employment prior to the end of the stated Term, the Executive Xx. Xxxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s 's “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented. (g) Effect of Code Sections 4999 and 280G on Payments. (1) In the event that Xx. Xxxxxxxx becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement or any other plan, arrangement, or agreement with the Company or a subsidiary (the “Payments”), and such Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to Xx. Xxxxxxxx and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if so reducing the Payments under this Agreement will provide Xx. Xxxxxxxx with a greater net after-tax amount than would be the case if no such reduction were made. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value to Xx. Xxxxxxxx, after taxes, of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g), and amounts reduced first will be payments that have a parachute payments value equal to their actual or intrinsic value to Xx. Xxxxxxxx. Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as “parachute payments” shall be reduced first. (2) In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following: (A) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code, as determined by the Company's independent accounting firm or other advisor; (B) The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company's independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and (C) The value of any non-competition covenants contained in this Agreement or other agreement between Xx. Xxxxxxxx and the Company or an affiliate shall be taken into account to reduce “parachute payments” to the maximum extent allowable under Section 280G of the Code. For purposes of the determinations under this Section 5(g), Xx. Xxxxxxxx shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the applicable payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Xx. Xxxxxxxx'x residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (unless it is impracticable for Xx. Xxxxxxxx to itemize his deductions).

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxx'x employment hereunder is terminated during but prior to the expiration of the Term, the Executive Xx. Xxxxx will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement):termination: (a) In the event that the Executive’s Xx. Xxxxx'x employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxx'x death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxx (or the Executive’s Xx. Xxxxx'x estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to delay in payment to the extent necessary to avoid tax penalties under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxx'x employment, the Performance Bonus, if any, in respect of such completed fiscal year payable as and when such bonus or Performance Bonus would have been paid had the Executive’s Xx. Xxxxx'x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); (4) any vacation accrued and unused to the date of terminationoftermination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxx'x employment terminated, payable as and when such bonus bonuses would have been paid had the Executive’s Xx. Xxxxx'x employment continued based on actual performance achieved for the fiscal year (continued, subject to Section 7(k) below5(g). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s Xx. Xxxxx'x employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxx without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to delay in payment to the extent necessary to avoid tax penalties under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of Xx. Xxxxx'x employment, the Executive’s employmentPerformance Bonus, if any, in respect of such completed fiscal year, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxx'x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxx'x employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Xx. Xxxxx with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to delay in payment to the extent necessary to avoid tax penalties under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before to the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of Xx. Xxxxx'x employment, the Executive’s employmentPerformance Bonus, if any, in respect of such completed fiscal year, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxx'x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d); ; (4) any vacation accrued and unused to the date of terminationoftermination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxx'x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxx'x employment continued based on actual performance achieved for the fiscal year (continued, subject to Section 7(k) below5(h); and (6) payment of a pro rata (based on the number of months that Xx. Xxxxx was employed) portion of the Completion Bonus, payable in a lump sum severance payment equal to the “Severance Amount” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before within 30 days after such termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Xx. Xxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. Xxxxx at the time of termination of the Executive’s Xx. Xxxxx'x employment prior to the end of the Term, the Executive Xx. Xxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s “'s "Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” " effective as of December 31, 2008. (g) In the event that Xx. Xxxxx becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement, or any other plan, arrangement, or agreement with the Company or a subsidiary (the "Payments"), and such Payments will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to Xx. Xxxxx and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if reducing the Payments under this Agreement will provide Xx. Xxxxx with a greater net after-tax amount than would be the case if no such reduction were made. The "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g). Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as "parachute payments" shall be reduced first. (1) In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following: (A) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(l) of the Code, as determined by the Company's independent accounting firm or other advisor; (B) The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company's independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) ofthe Code; and (C) The value of any non-competition covenants contained in this Agreement or other agreement between Xx. Xxxxx and the Company or an affiliate shall be taken into account to reduce "parachute payments" to the maximum extent allowable under Section 280G of the Code. For purposes of the determinations under this Section 5(g), Xx. Xxxxx shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the applicable payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Xx. Xxxxx'x residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (unless it is impracticable for Xx. Xxxxx to itemize his deductions). (h) In the event that Xx. Xxxxx becomes entitled to payment of a pro rata portion of the Performance Bonus, then, in the discretion of the Company, the present value of such Performance Bonus may be paid earlier than the specified time of settlement if accelerated payment is permissible under Code Section 409A, in which case the accelerated payment shall be in full settlement of the obligation hereunder. (i) Compensation paid or payable under this Agreement, including any Performance Bonus paid or payable under Section 3(b), shall be subject to recoupment by the Company in accordance with the terms of any policy relating to recoupment (or clawback) approved by the Board of Directors of the Company or Spectrum and in effect at the time amended or supplementedof payment of such compensation.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated during but prior to the expiration of the Term, the Executive Xx. Xxxxxxx will be entitled only to the following compensation and benefits under this Agreement Agree ment upon such termination (together with such other provisions that may be set forth in the Stock Option Agreementany stock option, restricted stock units or other equity award agreement): (a) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxxxx' death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxxxx (or the Executive’s to Xx. Xxxxxxx' estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise belowprovided in clauses (5) and (6), and subject to Section 6(j) in the case of Total Disability with regard to payments under clauses (5) and (6)), but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); (4) any vacation accrued and unused to the date of termination; and; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxx' employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued based on actual performance achieved for the fiscal year year; and (6) Payment of the Four-Year Incentive Bonus based on the Total Shareholder Return achieved through the conclusion of the Performance Period (which ends upon termination of employment), payable within 45 days after the end of the Performance Period (subject to Section 7(k6(j) belowin the case of Total Disability), provided that an amount will be retained by the Company based on the maximum amount potentially payable as the Performance Bonus under (5) above until such Performance Bonus is paid, at which time the remaining amount of the Four-Year Incentive Bonus, if any, also will be paid to Xx. Xxxxxxx or his estate. In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s Xx. Xxxxxxx' employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive Xx. Xxxxxxx and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive Xx. Xxxxxxx or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) Xx. Xxxxxxx co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxxxx without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise belowprovided in clause (2), and subject to Section 6(j) with respect to clause (2) in the case of a termination for Cause), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Xx. Xxxxxxx with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise belowprovided in clauses (5) and (6), and subject to Section 6(j) with regard to payments under clauses (5) and (6))), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d3(f) or 3(h); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxx' employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued based on actual performance achieved for the fiscal year year; (6) Payment of the Four-Year Incentive Bonus based on the Total Shareholder Return achieved through the conclusion of the Performance Period (which ends upon termination of employment), payable within 45 days after the end of the Performance Period (subject to Section 7(k6(j)), provided that an amount will be retained by the Company based on the maximum amount potentially payable as the Performance Bonus under (5) below); andabove until such Performance Bonus is paid, at which time the remaining amount of the Four-Year Incentive Bonus, if any, also will be paid to Xx. Xxxxxxx. (67) payment of a lump sum severance payment equal to the “Severance Amount.” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 2,000,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company A-Mark to the ExecutiveXx. Xxxxxxx, except that any Performance Perfor xxxxx Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Xx. Xxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e3(g) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. Xxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxx' employment prior to the end of the Term, the Executive Xx. Xxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s 's “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented. (g) Effect of Code Sections 4999 and 280G on Payments. (1) In the event that Xx. Xxxxxxx becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement or any other plan, arrangement, or agreement with the Company or a subsidiary (the “Payments”), and such Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to Xx. Xxxxxxx and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if so reducing the Payments under this Agreement will provide Xx. Xxxxxxx with a greater net after-tax amount than would be the case if no such reduction were made. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g). Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as “parachute payments” shall be reduced first. (2) In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following: (A) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code, as determined by the Company's independent accounting firm or other advisor; (B) The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company's independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and (C) The value of any non-competition covenants contained in this Agreement or other agreement between Xx. Xxxxxxx and the Company or an affiliate shall be taken into account to reduce “parachute payments” to the maximum extent allowable under Section 280G of the Code. For purposes of the determinations under this Section 5(g), Xx. Xxxxxxx shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the applicable payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Xx. Xxxxxxx’ residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (unless it is impracticable for Xx. Xxxxxxx to itemize his deductions).

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated during but prior to the expiration of the Term, the Executive Xx. Xxxxxxx will be entitled only to the following compensation and benefits under this Agreement upon such termination (together with such other provisions that may be set forth in the Stock Option Agreement): (a) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxxxx' death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxxxx (or the Executive’s Xx. Xxxxxxx' estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxx' employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year. In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s Xx. Xxxxxxx' employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive Xx. Xxxxxxx and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive Xx. Xxxxxxx or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) Xx. Xxxxxxx co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Company. (b) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxxxx without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxx' employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Xx. Xxxxxxx with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxx' employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxx' employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxx' employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year; and (6) payment of a lump sum severance payment equal to the “Severance Amount.” (subject to Section 7(k) below). The “Severance Amount” shall be an amount equal to the greater of $500,000 1,000,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized in accordance with the following table: For Termination During Fiscal Year Annualized Pay 2017 N/A (therefore Severance Amount will be $1,000,000) 2018 Annualized salary from July 1, 2016 through month before termination, plus Performance Bonus paid for fiscal 2017 2019 Annualized salary from July 1, 2016 through month before termination, plus annual average of Performance Bonuses paid for fiscal 2017 and fiscal 2018 2020 Annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the 2017, fiscal year of termination. 2018 and fiscal 2019 Salary and Performance Bonuses refer to compensation actually paid by the Company A-Xxxx to the ExecutiveXx. Xxxxxxx, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid. (d) The benefits to which the Executive Xx. Xxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, or fringe benefit plan applicable to the Executive Xx. Xxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxx' employment prior to the end of the Term, the Executive Xx. Xxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented.

Compensation Following Termination Prior to the End of the Term. In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the stated expiration of the Term, the Executive Xx. Xxxxxxxx will be entitled only to the following compensation and benefits under this Agreement upon and following such termination (together with such other provisions that may be set forth in the Restricted Stock Option Agreement):Award Agreement or relating to equity awards under the Plan), in lieu of any further compensation under Section 3: (a) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated during but prior to the expiration of the Term by reason of the Executive’s Xx. Xxxxxxxx’x death or Total Disability, pursuant to Section 4(a) or 4(b), the Company shall pay the following amounts to the Executive Xx. Xxxxxxxx (or the Executive’s Xx. Xxxxxxxx’x estate, as the case may be), to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Code Section 409A: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; and (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxxx’x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below). In addition, for a period of six (6) months, beginning on the date of termination of the Executive’s employment by reason of death or Total Disability, the Company will, at its expense, provide medical and group health insurance benefits to the Executive and his dependents (or just his dependents, as the case may be), which benefits shall be substantially as favorable to the Executive or his dependents as those provided to him and his dependents immediately preceding the termination of his employment, provided that the Executive (including his estate) co-payments or other obligations to pay for such benefits shall be substantially the same as applied at the time of his termination of employment, and provided further that this benefit shall be limited to the amount that can be paid or provided by the Company without such benefit being deemed discriminatory under applicable law such that it would result in material penalties to the Companyyear. (b) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company for Cause pursuant to Section 4(c) or by the Executive Xx. Xxxxxxxx without Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated otherwise below)termination, but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code; (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); and (4) any vacation accrued and unused to the date of termination. (c) In the event that the Executive’s Xx. Xxxxxxxx’x employment hereunder is terminated prior to the expiration of the Term by the Company without Cause pursuant to Section 4(d), or by the Executive Xx. Xxxxxxxx with Good Reason pursuant to Section 4(e), the Company shall pay the following amounts to the ExecutiveXx. Xxxxxxxx, to be paid as soon as practicable following the date of such termination (except as stated unless otherwise indicated below), but in no event prior to or later than the time such payment would not be subject to tax under Section 409A of the Code: (1) any accrued but unpaid Base Salary for services rendered before the date of termination; (2) the Performance Bonus, if any, not yet paid for any fiscal year ending prior to the date of termination of the Executive’s Xx. Xxxxxxxx’x employment, payable as and when such Performance Bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued; (3) any incurred but unreimbursed expenses required to be reimbursed pursuant to Section 3(d) or 3(f); (4) any vacation accrued and unused to the date of termination; (5) payment of a pro rata (based on the number of days during the fiscal year of termination that the Executive Xx. Xxxxxxxx was employed) portion of the Performance Bonus, if any, for the fiscal year in which the Executive’s Xx. Xxxxxxxx’x employment terminated, payable as and when such bonus would have been paid had the Executive’s Xx. Xxxxxxxx’x employment continued based on actual performance achieved for the fiscal year (subject to Section 7(k) below)year; and (6) payment continued payments of a lump sum severance payment equal to Base Salary until the “Severance Amount” (one-year anniversary of the date of termination of Xx. Xxxxxxxx’x employment, payable in installments in accordance with the Company’s standard payroll practices, subject to Section 7(k) below5(f). The “Severance Amount” shall be an amount equal to the greater of $500,000 or 100% of “Annualized Pay.” For this purpose, “Annualized Pay” will be calculated as annualized salary for the latest 36 months through the month before termination, plus annual average of Performance Bonuses paid for the three fiscal years preceding the fiscal year of termination. Salary and Performance Bonuses refer to compensation actually paid by the Company to the Executive, except that any Performance Bonus payable under clause (2) above for a completed fiscal year will be treated as paid.6 (d) The benefits to which the Executive Xx. Xxxxxxxx may be entitled upon termination pursuant to the plans, policies and arrangements referred to in Section 3(e) will be determined and paid in accordance with the terms of those plans, policies and arrangements. (e) Except as may be provided under this Agreement or Agreement, under the terms of any incentive compensation, employee benefit, benefit or fringe benefit plan applicable to the Executive Xx. Xxxxxxxx at the time of termination of the Executive’s Xx. Xxxxxxxx’x employment prior to the end of the stated Term, the Executive Xx. Xxxxxxxx will not be entitled to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to any future period after the termination of his employment. (f) This Agreement is subject to the Company’s 's “Special Rules for Compliance with Code Section 409A Applicable to Employment Agreements,” as from time to time amended or supplemented. (g) Effect of Code Sections 4999 and 280G on Payments. (1) In the event that Xx. Xxxxxxxx becomes entitled to any benefits or payments in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) under this Agreement or any other plan, arrangement, or agreement with the Company or a subsidiary (the “Payments”), and such Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed) in connection with a change in control, then, subject to reasonable notification to Xx. Xxxxxxxx and, if he so requests, discussions with his advisors, the Payments under this Agreement shall be reduced (but not below zero) to the Reduced Amount (as defined below), if so reducing the Payments under this Agreement will provide Xx. Xxxxxxxx with a greater net after-tax amount than would be the case if no such reduction were made. The “Reduced Amount” shall be an amount expressed in present value that maximizes the aggregate present value to Xx. Xxxxxxxx, after taxes, of the Payments without causing any Payment to be subject to the Excise Tax, determined in accordance with Section 280G(d)(4) of the Code. Only amounts payable under this Agreement shall be reduced pursuant to this Section 5(g), and amounts reduced first will be payments that have a parachute payments value equal to their actual or intrinsic value to Xx. Xxxxxxxx. Payments payable in cash and having the lowest denominated value relative to the valuation of such Payments as “parachute payments” shall be reduced first. (2) In determining the potential impact of the Excise Tax, the Company may rely on any advice it deems appropriate including, but not limited to, the advice of its independent accounting firm, legal advisors and compensation consultants. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, the Company may take into account any relevant guidance under the Code and the regulations promulgated thereunder, including, but not limited to, the following: (A) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code, as determined by the Company's independent accounting firm or other advisor; (B) The value of any non-cash benefits or any deferred or accumulated payment or benefit shall be determined by the Company's independent accounting firm or other advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code; and (C) The value of any non-competition covenants contained in this Agreement or other agreement between Xx. Xxxxxxxx and the Company or an affiliate shall be taken into account to reduce “parachute payments” to the maximum extent allowable under Section 280G of the Code. For purposes of the determinations under this Section 5(g), Xx. Xxxxxxxx shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the applicable payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Xx. Xxxxxxxx'x residence or otherwise applicable to the compensation, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (unless it is impracticable for Xx. Xxxxxxxx to itemize his deductions).