Common use of Severance and Non-Competition Payments Clause in Contracts

Severance and Non-Competition Payments. (1) If this Agreement is terminated by the Company other than by reason of death or disability or for Cause, or if this Agreement is terminated by Employee by reason of a Constructive Termination (as defined below) and such termination is other than in connection with a Change of Control (as defined below), the Company shall pay Employee a severance and non-competition payment equal to one and one half (1 1/2) times the Employee's Base Salary (but no Bonus Compensation) at the time of termination. Such severance and non-competition payment shall be payable in equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen (18) months. In addition, the Company shall provide, at no expense to the Employee for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for the Employee and, to the extent they continue to be eligible for such coverage under COBRA, his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employment. (2) For the purposes of this agreement, a "Change of Control" will be deemed to have occurred upon: (i) the acquisition by any one person or a group of associated persons (the "Person") of beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the shares of Common Stock then outstanding (the "Outstanding Common Stock") or the voting securities of the Company then outstanding entitled to vote generally in the election of directors (the "Outstanding Voting Securities"), if such acquisition of beneficial ownership would result in such Person beneficially owning either individually or in the aggregate 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of the Outstanding Voting Securities; provided, however, that immediately prior to such acquisition such Person(s) was not a direct or indirect beneficial owner of 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of Outstanding Voting Securities, as the case may be; and provided further, however, that if such acquisition is by a person who was a shareholder of the Company as of October 31, 2000, then a Change of Control does not occur unless both this Subsection (i) and Subsection (iii)'s change in Board composition provisions are met; or (ii) approval by the stockholders of the Company of a reorganization, merger, consolidation, substantial liquidation or dissolution of the Company, sale or disposition of all or substantially all of the assets of the Company, or similar corporate transaction (in each case referred to herein as a "Corporate Transaction"); provided, however, in any such case, payment of any benefits, or amounts (cash, stock or otherwise) shall be conditioned upon the actual consummation of such Corporate Transaction; or (iii) a change in the composition of the Board such that the individuals who, immediately prior to the Effective Date, constitute the Board (such Board hereinafter referred to as the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board on or subsequent to the Effective Date whose election, or nomination for election by the Company's stockholders, was as a result of the retirement, resignation or removal of a Board member in the ordinary course of business and was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule l4a-11 of Regulation 14A under the Securities Exchange Act of 1934 (as amended from time to time), including any successor to such Rule) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person(s) other than the Board shall not be so considered as a member of the Incumbent Board. (3) For purposes of this Agreement, a "Constructive Termination" shall be deemed to have occurred upon the Employee's voluntary termination of employment within 60 days (or 120 days in the event a Change of Control also has occurred) following the occurrence of any of the following: (a) a change in the Employee's duties or responsibilities, or a change in the Employee's reporting relationships, either of which results in or reflects a material diminution of the scope or importance of the Employee's responsibilities; (b) a reduction in the Employee's then current base salary or annual target bonus; (c) a reduction in the level of benefits available or awarded to the Employee under employee and officer benefit plans and programs including, but not limited to, annual and long-term incentive and stock-based plans and programs (other than as part of reductions in such benefit plans or programs affecting similarly situated employees of the Company); (d) any failure of any acquirer following a Change of Control to agree to be bound by this Agreement, or (e) a relocation of the Employee's primary employment location which is more than 50 miles from his current primary employment location; provided, however, that for Constructive Termination to have been deemed to have occurred, the Employee must give the Company written notice, at least 30 days prior to the date the Employee intends to terminate his employment, providing a description of the events constituting Constructive Termination hereunder and, in the event the Company corrects or cures such events prior to the conclusion of such 30 day period, then Constructive Termination shall not exist hereunder. In the event of a Constructive Termination, except as may specifically be provided to the contrary, Employer shall be treated in the same manner as if he had been terminated by the Company without Cause. (4) If this Agreement is terminated by the Company in connection with a Change of Control, and: (i) if Employee is not offered a position with similar responsibilities; or (ii) Employee is offered and accepts a position with similar responsibilities but is terminated without Cause within twelve (12) months after accepting such position, then (in lieu of any other severance payment under this Agreement) the Company shall pay Employee a severance and non-competition payment equal to one and one-half (1 1/2) times the Employee's Base Salary (but no Bonus Compensation) at the time of termination. Such severance and non-competition payment shall be payable in equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen (18) months. Company also, to the extent provided in the Grant, shall permit Employee to exercise his Options (or surrender the Options and obtain instead stock appreciation rights or other defined payments). In addition, the Company shall provide, at no expense to the Employee for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for the Employee and his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employment. (5) If Employee terminates his employment voluntarily, other than in the context of a Constructive Termination, Employee shall be paid his unpaid Base Salary (but no Bonus Compensation) through the date on which the voluntary termination occurs. (6) Notwithstanding anything else in this Agreement, the cash component and benefits component of any severance and non-competition payment under this Agreement shall totally cease in the event that Employee engages to any extent in a competitive employment or business as described in Section 9. In addition, the cash component of any severance and non-competition payment also shall be reduced by fifty percent (50%) of any amount of "Severance Period Earnings" (as defined below), whether or not competitive, to the extent such Severance Period Earnings are equal to or less than Fifty Thousand Dollars ($50,000) in any consecutive twelve (12) month period. In addition, the cash component of any severance and non-competition payment under this Agreement shall no longer be payable to any extent in the event that the Employee receives any amount of Severance Period Earnings in excess of Fifty Thousand Dollars ($50,000) in any consecutive twelve (12) month period. For purposes of this Agreement, Severance Period Earnings shall mean any amount(s) received as income from a subsequent employer or business during the period such severance or non-competition amount otherwise would be payable. In addition, the health insurance continuation component of any severance and non-competition payment under this Agreement also (except as required by applicable federal or state "COBRA" continuation laws) shall no longer apply in the event that the Employee becomes covered, or becomes eligible to be covered (even if Employee contribution or application is required), by a group health insurance plan of a subsequent employer or business.

Severance and Non-Competition Payments. (1) If this the Agreement is terminated by the Company other than by reason of death or disability or for CauseCompany, or if this Agreement is terminated by Employee including by reason of a Constructive Termination (as defined below) ), other than as a result of death or disability of Employee or for Cause (and such termination is other than in connection with a Change change in control of Control the Company (as defined below)), the Company shall pay Employee a severance and non-competition noncompetition payment equal to one and one half the sum of (1 1/2x) times an amount equal to the Employee's Base Salary for the remainder of the Term plus (but no y) an amount equal to the Bonus Compensation) at Compensation earned by the time Employee in respect of the last year immediately preceding the year of termination, multiplied by the number of years remaining in the Term (including, in the case of a partial year, the fraction of such year which is remaining); provided; however, that a termination during the last twelve (12) months of the Term shall be governed by Subsection 7.4(b)(5) below. Such severance and non-competition payment shall be payable in equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen (18) months. In addition, the Company shall provide, at no expense to the Employee continue for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for remainder of the Employee and, to the extent they continue to be eligible for such coverage under COBRA, his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employmentTerm. (2) For the purposes of this agreementthe Agreement, a "Change change in control of Controlthe Company" will shall be deemed to have occurred upon: if (i) the acquisition by any one person Company shall have merged or a group of associated persons (the "Person") of beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the shares of Common Stock then outstanding (the "Outstanding Common Stock") consolidated with an unaffiliated entity or the voting securities of the Company then outstanding entitled to vote generally in the election of directors (the "Outstanding Voting Securities"), if such acquisition of beneficial ownership would result in such Person beneficially owning either individually shall have transferred or in the aggregate 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of the Outstanding Voting Securities; provided, however, that immediately prior to such acquisition such Person(s) was not a direct or indirect beneficial owner of 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of Outstanding Voting Securities, as the case may be; and provided further, however, that if such acquisition is by a person who was a shareholder of the Company as of October 31, 2000, then a Change of Control does not occur unless both this Subsection (i) and Subsection (iii)'s change in Board composition provisions are met; or (ii) approval by the stockholders of the Company of a reorganization, merger, consolidation, substantial liquidation or dissolution of the Company, sale or disposition of sold all or substantially all of the its assets to an unaffiliated entity, other than a transaction which is approved by Employee in his capacity as a shareholder of the Company, or similar corporate transaction (in each case referred to herein as a "Corporate Transaction"); provided, however, in any such case, payment of any benefits, or amounts (cash, stock or otherwiseii) there shall be conditioned upon the actual consummation of such Corporate Transaction; or (iii) a change in the composition constituency of the Board such that the individuals who, immediately prior to the Effective Date, constitute the Board (such Board hereinafter referred to as the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board on or subsequent to the Effective Date whose election, or nomination for election by the Company's stockholders, was as a result of the retirement, resignation or removal of a Board member in the ordinary course of business and was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members within any twelve (12) month period, other than a change which Employee voted in favor of in his capacity as a shareholder of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule l4a-11 of Regulation 14A under the Securities Exchange Act of 1934 (as amended from time to time), including any successor to such Rule) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person(s) other than the Board shall not be so considered as a member of the Incumbent BoardCompany. (3) For purposes of this the Agreement, a "Constructive Termination" shall be deemed to have occurred upon (i) the Employee's voluntary termination removal of employment within 60 days (or 120 days in the event a Change of Control also has occurred) following the occurrence of any of the following: (a) a change in the Employee's duties or responsibilities, Employee from or a change in the Employee's reporting relationships, either failure of which results in or reflects a material diminution of the scope or importance of the Employee's responsibilities; (b) a reduction in the Employee's then current base salary or annual target bonus; (c) a reduction in the level of benefits available or awarded Employee to the Employee under employee continue as Executive Vice President and officer benefit plans and programs including, but not limited to, annual and long-term incentive and stock-based plans and programs (other than as part of reductions in such benefit plans or programs affecting similarly situated employees Chief Operating Officer of the Company); , (dii) any failure material diminution in the nature or scope of any acquirer following a Change of Control the authorities, powers, functions, duties or responsibilities attached to agree to be bound by this Agreementsuch positions, or (eiii) a relocation the material breach by the Company of the Employee's primary employment location which is more than 50 miles from his current primary employment location; providedAgreement if, however, that for Constructive Termination to have been deemed to have occurredin any such case, the Employee must give the Company written notice, at least 30 days prior does not agree to the date the Employee intends such change and elects to terminate his employment, providing a description of the events constituting Constructive Termination hereunder and, in the event the Company corrects or cures such events prior to the conclusion of such 30 day period, then Constructive Termination shall not exist hereunder. . (4) In the event of a Constructive Termination, except as may specifically be provided to the contrary, Employer shall be treated in the same manner as if he had been terminated termination of employment by the Company without Cause. (4) If this Agreement is terminated by following a change in control of the Company in connection with (including by reason of a Change of ControlConstructive Termination), and: (i) if Employee is not offered a position with similar responsibilities; or (ii) Employee is offered and accepts a position with similar responsibilities but is terminated without Cause within twelve (12) months after accepting such position, then (in lieu of any other severance payment under this Agreement) the Company shall pay the Employee a severance and non-competition payment equal to one and one-half two (1 1/22) times the Employee's sum of the Base Salary (but no plus the Bonus Compensation) at Compensation in respect of the time year immediately preceding the year of termination. Such severance and non-competition payment shall be payable in a lump sum on the first day of the month following the termination. In addition, all unvested Base Stock Options which were granted prior to the date of termination shall be deemed to have vested on the date of such change in control. (5) If this Agreement is not renewed beyond the Term by the parties hereto or if the Agreement is terminated by the Company (other than as a result of death or disability of Employee or for Cause and other than in connection with a change in control), including by reason of a Constructive Termination, in accordance with this Section 7 during the last twelve (12) months of the Term, the Company shall pay Employee a severance and noncompetition payment equal to the sum of (x) an amount equal to the Base Salary in respect of the year immediately preceding the year of termination plus (y) an amount equal to the Bonus Compensation earned by Employee in respect of the year immediately preceding the year of termination. Such severance and non-competition payment shall be payable in twelve (12) equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen (18) months. Company also, to the extent provided in the Grant, shall permit Employee to exercise his Options (or surrender the Options and obtain instead stock appreciation rights or other defined payments)termination. In addition, all unvested Base Stock Options shall be deemed to have vested on the Company shall provide, at no expense to the Employee for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for the Employee and his dependents who were covered by the Company's health insurance plan immediately prior to his termination date of employmentsuch termination. (56) If Employee terminates his employment voluntarily, other than in voluntarily prior to the context expiration of a Constructive Terminationthe Term, Employee shall be paid his unpaid Base Salary (but no Bonus Compensation) through the date on which the of such voluntary termination occurstermination. (67) Notwithstanding anything else in this Agreement, The Employee shall not be required to mitigate the cash component and benefits component amount of any severance and non-competition payment provided for under this the Agreement shall totally cease in the event that Employee engages to any extent in a competitive by seeking other employment or business as described in Section 9. In addition, the cash component of any severance and non-competition payment also shall be reduced by fifty percent (50%) of any amount of "Severance Period Earnings" (as defined below), whether or not competitive, to the extent such Severance Period Earnings are equal to or less than Fifty Thousand Dollars ($50,000) in any consecutive twelve (12) month period. In addition, the cash component of any severance and non-competition payment under this Agreement shall no longer be payable to any extent in the event that the Employee receives any amount of Severance Period Earnings in excess of Fifty Thousand Dollars ($50,000) in any consecutive twelve (12) month period. For purposes of this Agreement, Severance Period Earnings shall mean any amount(s) received as income from a subsequent employer or business during the period such severance or non-competition amount otherwise would be payable. In addition, the health insurance continuation component of any severance and non-competition payment under this Agreement also (except as required by applicable federal or state "COBRA" continuation laws) shall no longer apply in the event that the Employee becomes covered, or becomes eligible to be covered (even if Employee contribution or application is required), by a group health insurance plan of a subsequent employer or businessotherwise.

Severance and Non-Competition Payments. (1) If this Agreement is terminated by the Company other than by reason of death or disability or for Cause, or if this Agreement is terminated by Employee by reason of a Constructive Termination (as defined below) and such termination is other than in connection with a Change of Control (as defined below), the Company shall pay Employee a severance and non-competition payment equal to one and one half two (1 1/22) times the Employee's Base Salary (but no Bonus Compensation) at the time of termination. Such severance and non-competition payment shall be payable in equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen twenty-four (1824) months; provided, that in the event such a termination occurs on or before October 31, 2001, then the foregoing twenty-four (24) month period and the corresponding dollar amount of severance and non-competition payments shall be increased by one month for each full calendar month by which such termination precedes November 1, 2001. In addition, the Company shall provide, at no expense to the Employee for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for the Employee and, to the extent they continue to be eligible for such coverage under COBRA, his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employment. (2) For the purposes of this agreement, a "Change of Control" will be deemed to have occurred upon: (i) the acquisition by any one person or a group of associated persons (the "Person") of beneficial ownership (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of the shares of Common Stock then outstanding (the "Outstanding Common Stock") or the voting securities of the Company then outstanding entitled to vote generally in the election of directors (the "Outstanding Voting Securities"), if such acquisition of beneficial ownership would result in such Person beneficially owning either individually or in the aggregate 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of the Outstanding Voting Securities; provided, however, that immediately prior to such acquisition such Person(s) was not a direct or indirect beneficial owner of 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of Outstanding Voting Securities, as the case may be; and provided further, however, that if such acquisition is by a person who was a shareholder of the Company as of October 31, 2000, then a Change of Control does not occur unless both this Subsection (i) and Subsection (iii)'s change in Board composition provisions are met; or (ii) approval by the stockholders of the Company of a reorganization, merger, consolidation, substantial liquidation or dissolution of the Company, sale or disposition of all or substantially all of the assets of the Company, or similar corporate transaction (in each case referred to herein as a "Corporate Transaction"); provided, however, in any such case, payment of any benefits, or amounts (cash, stock or otherwise) shall be conditioned upon the actual consummation of such Corporate Transaction; or (iii) a change in the composition of the Board such that the individuals who, immediately prior to the Effective Date, constitute the Board (such Board hereinafter referred to as the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board on or subsequent to the Effective Date whose election, or nomination for election by the Company's stockholders, was as a result of the retirement, resignation or removal of a Board member in the ordinary course of business and was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board (or deemed to be such pursuant to this proviso) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule l4a-11 of Regulation 14A under the Securities Exchange Act of 1934 (as amended from time to time), including any successor to such Rule) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person(s) other than the Board shall not be so considered as a member of the Incumbent Board. (3) For purposes of this Agreement, a "Constructive Termination" shall be deemed to have occurred upon the Employee's voluntary termination of employment within 60 days (or 120 days in the event a Change of Control also has occurred) following the occurrence of any of the following: (a) a change in the Employee's duties or responsibilities, or a change in the Employee's reporting relationships, either of which results in or reflects a material diminution of the scope or importance of the Employee's responsibilities; (b) a reduction in the Employee's then current base salary or annual target bonus; (c) a reduction in the level of benefits available or awarded to the Employee under employee and officer benefit plans and programs including, but not limited to, annual and long-term incentive and stock-based plans and programs (other than as part of reductions in such benefit plans or programs affecting similarly situated employees of the Company); (d) any failure of any acquirer following a Change of Control to agree to be bound by this Agreement, or (e) a relocation of the Employee's primary employment location which is more than 50 miles from his current primary employment location; provided, however, that for Constructive Termination to have been deemed to have occurred, the Employee must give the Company written notice, at least 30 days prior to the date the Employee intends to terminate his employment, providing a description of the events constituting Constructive Termination hereunder and, in the event the Company corrects or cures such events prior to the conclusion of such 30 day period, then Constructive Termination shall not exist hereunder. In the event of a Constructive Termination, except as may specifically be provided to the contrary, Employer shall be treated in the same manner as if he had been terminated by the Company without Cause. (4) If this Agreement is terminated by the Company in connection with a Change of Control, and: (i) if Employee is not offered a position with similar responsibilities; or (ii) Employee is offered and accepts a position with similar responsibilities but is terminated without Cause within twelve (12) months after accepting such position, then (in lieu of any other severance payment under this Agreement) the Company shall pay Employee a severance and non-competition payment equal to one and one-half two (1 1/22) times the Employee's Base Salary (but no Bonus Compensation) at the time of termination. Such severance and non-competition payment shall be payable in equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen twenty-four (1824) months; provided, that in the event such a termination occurs on or before October 31, 2001, then the foregoing twenty-four month period shall be increased by one month for each full calendar month by which such termination precedes November 1, 2001. Company also, to the extent provided in the Grant, shall permit Employee to exercise his Options (or surrender the Options and obtain instead stock appreciation rights or other defined payments). In addition, the Company shall provide, at no expense to the Employee for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for the Employee and his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employment. (5) If Employee terminates his employment voluntarily, other than in the context of a Constructive Termination, Employee shall be paid his unpaid Base Salary (but no Bonus Compensation) through the date on which the voluntary termination occurs. (6) Notwithstanding anything else in this Agreement, the cash component and benefits component of any severance and non-competition payment under this Agreement shall totally cease in the event that Employee engages to any extent in a competitive employment or business as described in Section 9. In addition, the cash component of any severance and non-competition payment also shall be reduced by fifty percent (50%) of any amount of "Severance Period Earnings" (as defined below), whether or not competitive, to the extent such Severance Period Earnings are equal to or less than Fifty One Hundred Thousand Dollars ($50,000100,000) in any consecutive twelve (12) month period. In addition, the cash component of any severance and non-competition payment under this Agreement shall no longer be payable to any extent in the event that the Employee receives any amount of Severance Period Earnings in excess of Fifty One Hundred Thousand Dollars ($50,000100,000) in any consecutive twelve (12) month period. For purposes of this Agreement, Severance Period Earnings shall mean any amount(s) received as income from a subsequent employer or business during the period such severance or non-competition amount otherwise would be payable. In addition, the health insurance continuation component of any severance and non-competition payment under this Agreement also (except as required by applicable federal or state "COBRA" continuation laws) shall no longer apply in the event that the Employee becomes covered, or becomes eligible to be covered (even if Employee contribution or application is required), by a group health insurance plan of a subsequent employer or business.

Severance and Non-Competition Payments. (1a) If this the Agreement is terminated (i) by the Company other than by reason as a result of death or disability Disability of the Employee or for Cause, or if this Agreement is terminated by Employee by reason of a Constructive Termination Due Cause (as defined below) and such termination is other than in connection with a Change of Control change in control (as defined belowherein defined) of the Company) or (ii) by the Employee for Good Reason (other than in connection with a change in control of the Company), then the Company shall pay the Employee a severance and non-competition payment equal to one and one half (1 1/2) times the Employee's Base Salary in effect at the time of termination for a period equal to the lesser of (but no Bonus Compensationx) the remainder of the Term and (y) twelve (12) months; provided, however, that if more then two (2) years is remaining in the Term at the time of termination, such payment shall be for a period equal to fifty percent (50%) of the remainder of the Term. Such severance and non-competition payment shall be payable paid in equal monthly installments over such twelve (12) month or other period, as the case may be, commencing on the first day of the month following termination and continuing for a total of eighteen (18) monthstermination. In addition, all Stock Options which otherwise would have vested at the anniversary of the Agreement immediately following such termination shall be deemed to have vested on the date of such termination. (b) In the event that, following a change in control of the Company, the Agreement is terminated (i) by the Company other than as a result of death or Disability of the Employee or for Due Cause or (ii) by the Employee For Good Reason, then the Company shall provide, at no expense pay the Employee a severance and non-competition payment equal to the Employee Base Salary in effect at the time of termination for a period equal to the eighteen lesser of (18x) twenty-four (24) months and (y) the remainder of the Term. Such severance and non-competition payment shall be paid in equal monthly installments over such twenty-four (24) month COBRA or lesser period, continued health insurance coverage as the case may be, commencing on the first day of the month following termination. In addition, all Stock Options which have not yet vested shall be deemed to have vested on the date of such termination. A "change in effect from time to time for control" of the Employee and, to the extent they continue to be eligible for such coverage under COBRA, his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employment. (2) For the purposes of this agreement, a "Change of Control" will Company shall be deemed to have occurred upon: if (ix) the acquisition by any one person or a group of associated persons (the "Person") of shall have acquired beneficial ownership (within as such terms are defined under the meaning of Rule 13d-3 rules and regulations adopted under the Securities Exchange Act of 1934, as amended) of the shares a percentage of Common Stock then outstanding (the "Outstanding Common Stock") or the voting securities of the Company then outstanding entitled to vote generally in which exceeds the election percentage of directors voting securities beneficially owned by Xxxxxxxxx Xxxxx (the "Outstanding Voting Securities"), if such acquisition of beneficial ownership would result in such Person beneficially owning either individually or in the aggregate 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of the Outstanding Voting Securities; provided, however, that immediately prior to such acquisition such Person(s) was not a direct or indirect beneficial owner of 50.1% or more of the Outstanding Common Stock or 50.1% or more of the combined voting power of Outstanding Voting Securities, as the case may be; and provided further, however, that if such acquisition is by a person who was a shareholder of the Company as of October 31, 2000, then a Change of Control does not occur unless both this Subsection (i) and Subsection (iii)'s change in Board composition provisions are met; or (ii) approval by the stockholders of the Company of a reorganization, merger, consolidation, substantial liquidation or dissolution principal stockholder of the Company), sale at the time of acquisition by such person or disposition of all or substantially all of the assets of the Companygroup, or similar corporate transaction and (y) in each case referred to herein as a "Corporate Transaction"); providedconnection with such acquisition, however, in any such case, payment of any benefits, or amounts (cash, stock or otherwise) there shall be conditioned upon the actual consummation of such Corporate Transaction; or (iii) have occurred a change in the composition constituency of the Board such that the individuals who, immediately prior to the Effective Date, constitute the Board (such Board hereinafter referred to as the "Incumbent Board") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual who becomes a member of the Board on or subsequent to the Effective Date whose election, or nomination for election by the Company's stockholders, was as a result of the retirement, resignation or removal of a Board member in the ordinary course of business and was approved by a vote of at least a majority of those individuals who are members of the Board and who were also members of the Incumbent Board . (or deemed to be such pursuant to this provisoc) shall be considered as though such individual were a member of the Incumbent Board; but, provided, further, that any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule l4a-11 of Regulation 14A under the Securities Exchange Act of 1934 (as amended from time to time), including any successor to such Rule) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person(s) other than the Board The Employee shall not be so considered as a member of required to mitigate the Incumbent Board. (3) For purposes of this Agreement, a "Constructive Termination" shall be deemed to have occurred upon the Employee's voluntary termination of employment within 60 days (or 120 days in the event a Change of Control also has occurred) following the occurrence of any of the following: (a) a change in the Employee's duties or responsibilities, or a change in the Employee's reporting relationships, either of which results in or reflects a material diminution of the scope or importance of the Employee's responsibilities; (b) a reduction in the Employee's then current base salary or annual target bonus; (c) a reduction in the level of benefits available or awarded to the Employee under employee and officer benefit plans and programs including, but not limited to, annual and long-term incentive and stock-based plans and programs (other than as part of reductions in such benefit plans or programs affecting similarly situated employees of the Company); (d) any failure of any acquirer following a Change of Control to agree to be bound by this Agreement, or (e) a relocation of the Employee's primary employment location which is more than 50 miles from his current primary employment location; provided, however, that for Constructive Termination to have been deemed to have occurred, the Employee must give the Company written notice, at least 30 days prior to the date the Employee intends to terminate his employment, providing a description of the events constituting Constructive Termination hereunder and, in the event the Company corrects or cures such events prior to the conclusion of such 30 day period, then Constructive Termination shall not exist hereunder. In the event of a Constructive Termination, except as may specifically be provided to the contrary, Employer shall be treated in the same manner as if he had been terminated by the Company without Cause. (4) If this Agreement is terminated by the Company in connection with a Change of Control, and: (i) if Employee is not offered a position with similar responsibilities; or (ii) Employee is offered and accepts a position with similar responsibilities but is terminated without Cause within twelve (12) months after accepting such position, then (in lieu of any other severance payment under this Agreement) the Company shall pay Employee a severance and non-competition payment equal to one and one-half (1 1/2) times the Employee's Base Salary (but no Bonus Compensation) at the time of termination. Such severance and non-competition payment shall be payable in equal monthly installments commencing on the first day of the month following termination and continuing for a total of eighteen (18) months. Company also, to the extent provided in the Grant, shall permit Employee to exercise his Options (or surrender the Options and obtain instead stock appreciation rights or other defined payments). In addition, the Company shall provide, at no expense to the Employee for the eighteen (18) month COBRA period, continued health insurance coverage as in effect from time to time for the Employee and his dependents who were covered by the Company's health insurance plan immediately prior to his termination of employment. (5) If Employee terminates his employment voluntarily, other than in the context of a Constructive Termination, Employee shall be paid his unpaid Base Salary (but no Bonus Compensation) through the date on which the voluntary termination occurs. (6) Notwithstanding anything else in this Agreement, the cash component and benefits component amount of any severance and non-competition payment provided for under this the Agreement shall totally cease in by seeking other employment (which may include self-employment) or otherwise. After the event that Employee engages to any extent in a competitive employment or business as described in Section 9. In additiontermination of the Agreement, the cash component of however, any severance and non-competition payment also payments due to the Employee from the Company hereunder shall be reduced by fifty percent (50%) of any an amount of "Severance Period Earnings" (as defined below), whether or not competitive, to the extent such Severance Period Earnings are equal to or less than Fifty Thousand Dollars ($50,000) in any consecutive twelve (12) month period. In addition, the cash component 50% of any severance and non-competition payment under this Agreement shall no longer be payable to any extent in the event that all amounts received by the Employee receives in connection with any amount of Severance Period Earnings in excess of Fifty Thousand Dollars other employment ($50,000) in any consecutive twelve (12) month period. For purposes of this Agreement, Severance Period Earnings shall mean any amount(s) received as income from a subsequent employer or business during the period such severance or nonincluding self-competition amount otherwise would be payable. In addition, the health insurance continuation component of any severance and non-competition payment under this Agreement also (except as required by applicable federal or state "COBRA" continuation laws) shall no longer apply in the event that the Employee becomes covered, or becomes eligible to be covered (even if Employee contribution or application is requiredemployment), by a group health insurance plan of a subsequent employer or business.