Common use of Termination After a Change in Control Clause in Contracts

Termination After a Change in Control. (i) In the event Executive's employment is terminated by the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Control.

Termination After a Change in Control. (i) In the event Executive's employment is terminated by the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as of a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if of the Company (as defined as of the date hereof in the Company's 1996 Stock Incentive Plan for Employees), if, within twenty-four (24) months following the closing of such a Change in Control (or at any time prior thereto but in contemplation thereof): (i) There is a material reduction in the Employee's title, authority or responsibilities, including reporting responsibilities; (ii) The Employee's Annual Base Salary is reduced; (iii) The Employee's office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to the Change in Control; (iv) The Company fails to continue in effect any "Person" incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit; (as such term is used v) The Company fails to continue in Section 13(deffect any employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Securities Exchange Act Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent; (vi) The Company breaches any material provision of 1934, as amended this Employment Agreement; or (the "Exchange Act")vii) becomes the "beneficial owner" (as determined pursuant The Company fails to Rule 13d-3 under the Exchange Act), directly obtain a satisfactory agreement from any successor or indirectly, of securities assign of the Company representing more than fifty to assume and agree to perform this Employment Agreement; Then the Employee shall have the option to voluntarily terminate his employment and the Company shall: a) Pay the Employee his full base salary earned but not yet paid through the Termination Date at the greater of the rate in effect at the time of the Change in Control or the Termination Date ("Higher Annual Base Salary"), plus a bonus calculated at one hundred twenty-five percent (50125%) of his Annual Base Salary prorated for the combined voting power current fiscal year through the Termination Date. b) Pay the Employee a lump sum in an amount equal to two and one-half (2 1/2) times the amount equal to the sum of (1) the Employee's Higher Annual Base Salary plus (2) the maximum target bonus or incentive compensation which could have been earned by the Employee calculated as if all relevant goals had been met during the then current fiscal year of the Company pursuant to the terms of the incentive compensation plan in which he participates. If there is no incentive compensation plan in effect as of the Termination Date, then for purposes of this Agreement it shall be assumed that the amount of incentive compensation to be paid to the Employee shall be the maximum target amount under any incentive compensation plan in which he participated at the date of the Change in Control or the most recent plan participated in, whichever would be greater. c) Maintain in full force and effect for the benefit of the Employee and the Employee's dependents and beneficiaries, at the Company's then outstanding securitiesexpense, other than any person who acquires five percent all life insurance, health insurance, dental insurance, accidental death and dismemberment insurance and disability insurance under plans and programs in which the Employee and/or the Employee's dependents and beneficiaries participated immediately prior to the Termination Date, provided that continued participation is possible under the general terms and provisions of such plans and programs (5%"Extended Benefits"). The Extended Benefits shall be continued until the earlier of (A) or more the second (2nd) anniversary of the outstanding common stock Termination Date, (B) the effective date of the Company in accordance with Employee's coverage under equivalent benefits from a plan of reorganization under chapter 11 of Title 11 of the United States Code new employer (a "Chapter 11 Plan"provided that no such equivalent benefits shall be considered effective unless and until all pre-existing condition limitations and waiting period restrictions have been waived or have otherwise lapsed), or (iiC) the death of the Employee. If participation in any such plan or program is barred, the Company shall merge arrange at its own expense to provide the Employee with or consolidate into benefits substantially similar to those which he was entitled to receive under such plans and programs. At the end of the period of coverage, the Employee shall have the right to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy relating specifically to him. Employee shall be entitled to continuation coverage as provided in Section 8(d) at the conclusion of the coverage provided under this Section. The amount of any payment provided for in this Section 9 shall be offset by any lump sum cash payments due the Employee upon termination under any other entity, other than a merger provisions of this Employment Agreement. d) To the extent that any amounts or consolidation which would result payments in the holders nature of compensation [within the meaning of Section 280G of the voting securities Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder ("Section 280G")] to or for the benefit of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent Employee under this Employment Agreement or otherwise (50%or any part of such amount or other payment) constitutes an "excess parachute payment" within the meaning of Section 280G and Section 4999 of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoingInternal Revenue Code, no Change in Control of then the Company shall be deemed pay to Employee an additional sum such that, after all taxes applicable to the receipt of such amount have occurred by virtue been subtracted therefrom, the remaining amount will equal the sum of any transaction which results in Executive, or any group, association or other organization the amount of persons related to, including, or acting in concert tax imposed with Executive (respect to the "Related Persons"), acquiring, directly or indirectly, excess parachute payment," plus any interest and penalties thereon (other than those caused solely by Employee's action or inaction). Therefore, the effect shall be to maintain the Employee in the Company which same financial position that he would otherwise constitute a Change of Control. Further, the restriction have been in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Controlhad no tax under Section 280G been imposed.

Termination After a Change in Control. (i) In the event Executive's employment is terminated by the Company without CauseCause within 12 months following a Change of Control, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof of the Agreement with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of such termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "" Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Control.

Termination After a Change in Control. (i) In the event Executivethat a ------------------------------------- Change in Control (as defined below) shall occur during the Term and within 12 months after such Change in Control Employee's employment is shall be terminated by the Company without CauseCause or by Employee for Good Reason (whether or not such termination occurs prior to the end of the Term), or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive Employee shall be entitled to the same compensation following payments and benefits described in Section 4(alieu of any entitlement under paragraph 6(d) hereof above, subject to Employee's compliance with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination paragraph 7 below: (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one i) a lump sum payment, payable within twenty (20) 90 days after the effective date of such termination, it being of an amount in cash equal to the intent product of (A) the parties that sum of (x) Employee's annual salary at the Supplemental Payment shall not be reduced rate in effect on the date of termination plus (y) the greater of Employee's target bonus under the Company's bonus plan for the year of termination or the avenge of Employee's bonus for the three years preceding the date of termination, multiplied by any compensation thereafter actually received by Executive as a result (B) the greater of Executive's employment three or retention by another employer the number of years and partial years remaining in any capacity.the Term; (ii) A "Change in Control" Employee shall continue to be covered (or shall be deemed provided substantially equivalent benefits) at the Company's expense to have occurred if (i) any "Person" (the same extent as such term is used in Section 13(d) prior to his termination by the Company's medical, dental and life insurance plans for the longer of the Securities Exchange Act remainder of 1934the Term or three years, subject to the proviso at the end of paragraph (d)(iii); (iii) Employee shall be entitled to the benefits specified in paragraphs (d)(iv) and (v); and (iv) if it shall be determined that any payment or distribution by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Employment Agreement or otherwise (a "Payment"), would be subject to the excise tax ------- imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Exchange ActCode") (the "Excise Tax")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of then the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code shall pay to Employee an ---- ---------- additional payment (a "Chapter 11 PlanGross-Up Payment")) in an amount necessary to ---------------- reimburse Employee, or on an after-tax basis, for the Excise Tax and for any federal, state and local income tax and excise tax (iiincluding any interest and penalties imposed with respect to such taxes) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders that may be imposed by reason of the voting securities Payment. For purposes of determining the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) amount of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoingany Gross- Up Payment, no Change in Control of the Company Employee shall be deemed to have occurred by virtue pay federal, state and local income taxes at the highest applicable marginal rate of any transaction taxation in the calendar year in which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive the Gross-Up Payment is to be made. All determinations required to be made under this paragraph ("Related Persons"e)(iv), acquiringincluding whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, directly or indirectly, any interest in shall be made by a nationally-known independent accounting firm mutually agreed upon by the Company and Employee (the "Accounting Firm") which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or provide detailed supporting --------------- calculations both to the Company after and Employee within 15 business days of the request for such Change determination. Such request may be made by either party. The Company shall pay the fees and expenses of Control for a period the Accounting Firm in connection with any determinations hereunder. The Gross-Up Payment shall be paid by the Company within 10 days of 12 months following such Change the Accounting Firm's determination of Controlthe amount thereof.

Termination After a Change in Control. (ia) In Executive, by written notice to the event Executive's employment is terminated by Board of Directors, shall have the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects right to terminate his employment, within 12 months employment at any time during a thirty-day period commencing on the ninetieth day following a Change of Control. Upon such termination, the Employment Term shall terminate, the Company shall not be obligated to provide compensation or benefits under this Agreement with respect to the period following such termination, and Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination by 9 hereof, payable at the Company without Causesame time and in the same form, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's if his employment or retention by another employer in any capacityhad been terminated for Good Reason. (iib) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) during any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the members of the Board of Directors and any new director, whose election to the Board of Directors or nomination for election to the Board of Directors by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors (except as a result of a Chapter 11 Plan), or (iii) the Company shall merge with or consolidate into any other entitycorporation, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation; except that a merger or consolidation effected to implement a Chapter 11 Plan or recapitalization of the Company (or similar transaction) shall not constitute a Change in Control, or (iiiiv) the stockholders of the Company approve and effect a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding . (c) In the foregoingevent that any payment or benefit received or to be received by Executive pursuant to the terms of this Agreement (the "Contract Payments") or of any other plan, no Change in Control arrangement or agreement of the Company (or any affiliate) ("Other Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), as determined as provided below, and the aggregate present value of Payments exceeds three (3) times Executive's "base amount" (as such term is defined in Section 280G of the Code) by $100,000 or less, the Payments shall be reduced (but not below zero) until no portion of the Payments would be subject to the Excise Tax. Such determination shall be made in an opinion of counsel selected by the Company and reasonably acceptable to Executive ("Tax Counsel") and, in making such determination, (i) the value of any non-cash benefit or any deferred payment or benefit included in such payments shall be determined in accordance with the principles of Sections 280G(d)(3) of the Code, and (ii) Executive shall be entitled, at any time by written notice to the Company, to reduce the amount of any Payment otherwise payable to him and to select from among the Payments those to be so reduced. (d) In the event that any Payment would be subject to the Excise Tax imposed by Section 4999 of the Code, as determined as provided below, and the aggregate present value of the Payments exceeds three (3) times Executive's "base amount" (as such term is defined in Section 280G of the Code) by more than $100,000, the Company shall pay to Executive, at the time specified in this Section 10 below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Payments and any federal, state and local income tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in Section 1274(d) of the Code in such calculation) of the Payments at the time such Payments are to be made. (e) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (i) the total amount of the Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of Tax Counsel, a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of section 280G(b) (1) of the Code (after applying clause (1) hereof), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to have occurred by virtue pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of Executive's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates. (f) The Gross-Up Payments provided for in this Section 10 shall be made upon the earlier of (i) the payment to Executive of any transaction which Payment or (ii) the imposition upon Executive or payment by Executive of any Excise Tax. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the opinion of Tax Counsel that the Excise Tax is less than the amount taken into account under Section 10 hereof, Executive shall repay to the Company within thirty (30) days of Executive's receipt of notice of such final determination or opinion the portion, of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Executive, if such repayment results in Executivea reduction in Excise Tax or a federal, state and local income tax deduction) plus any interest received by Executive on the amount of such repayment. If it is established pursuant to a final determination of a court, an Internal Revenue Service proceeding, or the opinion of Tax Counsel that the Excise Tax exceeds the amount taken into account hereunder (including by reason of any group, association payment the existence or other organization amount of persons related to, including, or acting in concert with Executive ("Related Persons"which cannot be determined at the time of the Gross-Up Payment), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change shall make an additional Gross-Up Payment in respect of Control. Further, such excess within thirty (30) days of the restriction in the preceding sentence shall apply in Company's receipt of notice of such final determination or opinion. (g) In the event of Executive's employment byany change in, or further interpretation of, sections 280G or 4999 of the Code and the regulations promulgated thereunder, Executive shall be entitled, by written notice to the Company, to request an opinion of Tax Counsel regarding the application of such change to any other business affiliation withof the foregoing, any such Related Persons or the Company after shall use its best efforts to cause such Change opinion to be rendered as promptly as practicable. All fees and expenses of Control for a period of 12 months following such Change of ControlTax Counsel incurred in connection with this agreement shall be borne by the Company.

Termination After a Change in Control. If, within one (1) year after a Change in Control (i) In the event ExecutiveCompany shall terminate Employee's employment is terminated other than for Cause or Disability or (ii) Employee shall terminate employment for Good Reason, Company shall have no further obligation to Employee under this Agreement or otherwise except to pay to Employee: 4.2.7.1 Any accrued and unpaid base compensation (including accrued vacation, but less applicable withholdings) and reimbursement of any unpaid reimbursable expenses owed by Company to Employee through the Company without Causetermination date, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment which amounts shall be paid to Executive Employee in a lump sum in cash within 30 days after the date of termination; and 4.2.7.2 Severance compensation totaling three (3) years' base salary, based on Employee's annual salary as in effect at the date of termination. Payment of such severance compensation shall be made in one lump sum payable within twenty (20) 70 days after the effective date of such termination, it being or such later date as may be required by Section 10 of this Agreement, and shall be conditioned upon (i) Employee executing a Separation Agreement, which shall include among other things the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer language set forth in any capacity. Exhibit A and (ii) Employee's compliance with his obligations under Article 6; provided, however, that Company may in its sole discretion revise the language in Exhibit A "Change in Control" at any time prior to the execution of the Separation Agreement. Severance compensation pursuant to this Section 4.2.7 shall be deemed in lieu of any other severance benefit or other right or remedy to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 which Employee would otherwise be entitled under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) policies in effect on the Effective Date or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve thereafter. Employee acknowledges and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply agrees that in the event Employee breaches any provision of Executive's employment by, or any other business affiliation with, any such Related Persons Article 6 or the Company after such Change of Control for a period of 12 months following such Change of ControlSeparation Agreement, his right to receive severance payments under this Section 4.2.7 shall automatically terminate and Employee shall repay all severance payments received.

Termination After a Change in Control. (ia) In the event Executive's employment is terminated by of a “Change in Control” of the Company without Cause(as defined as of the date hereof in the Company’s 1996 Stock Incentive Plan for Employees), or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive Employee shall be entitled to the same compensation and benefits described set forth in Section 4(a10(b) hereof of this Agreement, if, (1) Within twenty-four (24) months following Change in Control Employee’s employment with respect to any termination the Company is terminated either by the Company without CauseGood Cause or by Employee after one of the following events occurs: (A) There is a material reduction in the Employee’s title, PLUS authority or responsibilities, including reporting responsibilities; (B) The Employee’s Annual Base Salary is reduced; (C) The Employee’s office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to such relocation; (D) The Company fails to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit; (E) The Company fails to continue in effect any employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent; (F) The Company breaches any material provision of this Employment Agreement; or (G) The Company fails to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Employment Agreement. (b) In the event that a termination of Employee’s employment with the Company occurs pursuant to Section 10(a) of this Agreement, the Company shall (1) Pay Employee no later than thirty (30) calendar days after such Termination Date his full base salary earned but not yet paid through the Termination Date at the greater of the rate in effect at the time of the Change in Control or the Termination Date (“Higher Annual Base Salary”). (2) Pay Employee his annual bonus for the fiscal year in which the Termination Date occurs calculated at the percentage earned under the applicable plan based on actual performance for such fiscal year, prorated for the portion of the fiscal year of the Company that has elapsed prior to the Termination Date and paid at the same time as bonuses are paid to other participants in the plan for such fiscal year; provided that if the Termination Date occurs in the same calendar year in which the Change in Control occurs, the amount to which Employee is entitled pursuant to this Section 10(b)(2) shall not be less than Employee’s annual bonus for the fiscal year calculated at the target percentage of his Annual Base Salary prorated through the date of the Change in Control. (3) Pay Employee no later than thirty (30) calendar days after such Termination Date a lump sum in an amount equal to Executive's two and one-half (2 1/2) times the amount equal to the sum of (1) the Employee’s Higher Annual Base Salary plus (2) the target annual base salary on bonus which could have been earned by the Employee for the fiscal year of the Company in which the Termination Date occurs calculated as if all relevant goals had been met during that fiscal year pursuant to the terms of the incentive compensation plan in which he participates. If there is no incentive compensation plan in effect as of the Termination Date, then for purposes of this Agreement it shall be assumed that the amount of incentive compensation to be paid to the Employee shall be the maximum target amount under any incentive compensation plan in which he participated at the date of the Change in Control or the most recent plan participated in, whichever would be greater. (4) Maintain in full force and effect for the benefit of the Employee and the Employee’s dependents and beneficiaries, at the Company’s expense, all life insurance, health insurance, dental insurance, accidental death and dismemberment insurance and disability insurance under plans and programs in which the Employee and/or the Employee’s dependents and beneficiaries participated immediately prior to the Termination Date, provided that continued participation is possible under the general terms and provisions of such plans and programs (“Extended Benefits”). The Extended Benefits shall be continued until the earlier of (i) the second (2nd) anniversary of the Termination Date, (ii) the effective date of termination the Employee’s coverage under equivalent benefits from a new employer (the "Supplemental Payment"). The Supplemental Payment provided that no such equivalent benefits shall be paid to Executive in one lump sum within twenty (20) days after the considered effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment unless restrictions have been waived or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Actotherwise lapsed), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders death of the Employee. If participation in any such plan or program is barred, the Company shall arrange at its own expense to provide the Employee with benefits substantially similar to those which he was entitled to receive under such plans and programs. On the Termination Date, and without any reduction or limitation on the obligations described above, the Employee shall have the right to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy relating specifically to him. Employee shall be entitled to continuation coverage as provided in Section 9(e) at the conclusion of the coverage provided under this Section. (5) Notwithstanding the terms and provisions of any equity compensation plan of the Company approve as in effect as of the date hereof or as amended hereafter, (i) to the extent any of the restricted shares or other equity-based awards thereunder granted to Employee that may be outstanding which have not yet vested or been forfeited, such shares or awards shall become vested and effect an agreement non-forfeitable as of the Termination Date; provided, that performance-based shares and awards shall vest at the percentage earned under the applicable plan or award based on actual performance for the sale or disposition by applicable performance period, (ii) to the Company of all or substantially all extent stock options thereunder granted to Employee have not become fully vested and exercisable as of the Company's assets. Notwithstanding Termination Date, such options shall become fully vested; provided, that if such stock options are performance-vested stock options, they will vest only to the foregoingextent they would have vested if the target level of performance had been achieved and (iii) all vested stock options granted after the date of this Agreement shall be exercisable until the earlier of (A) two (2) years following the Termination Date, no Change in Control or (B) the original term of the Company option grant. The amount of any payment provided for in this Section 10 shall be deemed to have occurred offset by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in lump sum cash payments due the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or Employee upon termination under any other business affiliation with, any such Related Persons or the Company after such Change provisions of Control for a period of 12 months following such Change of Control.this Agreement

Termination After a Change in Control. (i) In the event Executive's employment is terminated by the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof of the Agreement with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "" Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Control.

Termination After a Change in Control. In the event of a "Change in ------------------------------------- Control" of the Company (as defined as of the date hereof in the Company's 1996 Stock Incentive Plan for Employees), if, within twenty-four (24) months following the closing of such Change in Control (or at any time prior thereto but in contemplation thereof): (i) In There is a material reduction in the event ExecutiveEmployee's employment title, authority or responsibilities, including reporting responsibilities; (ii) The Employee's Annual Base Salary is terminated reduced; (iii) The Employee's office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to the Change in Control; (iv) The Company fails to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit; (v) The Company fails to continue in effect any Employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Change in Control, unless the Company without Causesubstitutes benefits which, in the aggregate, are substantially equivalent; (vi) The Company breaches any material provision of this Employment Agreement; or (vii) The Company fails to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Employment Agreement, Then the Employee shall have the option to voluntarily terminate his employment and the Company shall: (a) Pay the Employee his full base salary earned but not yet paid through the Termination Date at the greater of the rate in effect at the time of the Change in Control or the Termination Date ("Higher Annual Base Salary"), plus any bonuses or incentive compensation which, pursuant to the terms of any compensation or benefit plan, have been earned and are payable as of the Termination Date. For purposes of this Agreement, bonuses and incentive compensation shall be considered payable if all conditions for earning them have been met and any requirement that Employee be actively employed as of the date of payment shall be disregarded. (b) Pay the Employee a lump sum in an amount equal to two and one- half (2 1/2) times the amount equal to the sum of (1) the Employee's Higher Annual Base Salary plus (2) the maximum target bonus or incentive compensation which could have been earned by the Employee calculated as if all relevant goals had been met during the then current fiscal year of the Company pursuant to the terms of the incentive compensation plan in which he participates. If there is no incentive compensation plan in effect as of Termination Date, then for purposes of this Agreement it shall be assumed that the amount of incentive compensation to be paid to the Employee shall be the maximum target amount under any incentive compensation plan in which he participated at the date of the Change in Control or the most recent plan participated in, whichever would be greater. (c) Maintain in full force and effect for the benefit of the Employee and the Employee's dependents and beneficiaries, at the Company's expense, all life insurance, health insurance, dental insurance, accidental death and dismemberment insurance and disability insurance under plans and programs in which the Employee and/or the Employee's dependents and beneficiaries participated immediately prior to the Termination Date, provided that continued participation is possible under the general terms and provisions of such plans and programs ("Extended Benefits"). The Extended Benefits shall be continued until the earlier of (A) the second (2nd) anniversary of the Termination Date, (B) the effective date of the Employee's coverage under equivalent benefits from a new employer (provided that no such equivalent benefits shall be considered effective unless and until all pre- existing condition limitations and waiting period restrictions have been waived or have otherwise lapsed), or if Executive's duties (C) the death of the Employee. If participation in any such plan or responsibilities are significantly reduced or made inconsistent program is barred, the Company shall arrange at its own expense to provide the Employee with Executive's title or position benefits substantially similar to those which he was entitled to receive under such plans and as a result Executive elects programs. At the end of the period of coverage, the Employee shall have the right to terminate his employmenthave assigned to him, within 12 months following a Change at no cost and with no apportionment of Controlprepaid premiums, Executive any assignable insurance policy relating specifically to him. Employee shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination continuation coverage as provided by the Company without Cause, PLUS an amount equal to Executive's annual base salary on Consolidated Omnibus Budget Reconciliation Act (COBRA) at the effective date conclusion of termination (the "Supplemental Payment")coverage provided under this Section. The Supplemental Payment amount of any payment or benefit provided for in this Section 9 shall be paid to Executive in one offset by any lump sum within twenty (20) days after cash payments due the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 Employee upon Termination under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders provisions of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Controlthis Employment Agreement.

Termination After a Change in Control. Notwithstanding anything herein to the contrary, if the Executive’s employment terminates due to either a Without Cause Termination or a Constructive Discharge following a Change in Control (as defined below), then the Company will pay the Executive (or the Executive’s surviving spouse, estate or personal representative, as applicable), no later than thirty (30) days after such Without Cause Termination or Constructive Discharge, (i) In a lump sum cash payment equal to the event aggregate Monthly Base Salary for the Continuation Period, (ii) any and all Base Salary and Incentive Compensation Awards earned but unpaid through the date of such termination, (iii) any unpaid amounts pursuant to Section IV(iv)(b)(2), and (iv) a pro rata portion of the Incentive Compensation Award in respect of the fiscal year in which Executive's ’s employment is terminated by the Company without Cause, terminates due to either a Without Cause Termination or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months Constructive Discharge following a Change in Control (paid at the Target Level), provided that all the performance targets relating to such Incentive Compensation Award have been attained. In addition, upon such event, all of Controlthe Executive’s outstanding and unvested stock options and any other equity awards or other incentives or compensation that is subject to vesting will become immediately and fully vested and exercisable, and all outstanding options, awards, incentives and compensation shall be extended and remain exercisable in accordance with the plan under which they were granted or awarded. Furthermore, upon such event, the Executive shall be entitled to continue coverage under all health and welfare plans for the same compensation Executive and members of the Executive’s immediate family, including medical and dental benefits, during the twelve (12)-month period immediately following such termination, with the Executive’s cost being no greater than the cost applicable to the Executive had the Executive been an active, full-time employee of the Company during such period. Following the expiration of such twelve (12)-month period, Executive and members of the Executive’s immediate family, shall be permitted to continue coverage under the Company’s medical, prescription and dental plan for any remaining continuation period required under COBRA (treating such twelve (12)-month period as part of the continuation period required by COBRA), at the applicable premium rate for similarly situated participants. The payments to be made, and the benefits described in Section 4(a) hereof with respect to any termination be provided, by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%this Section VIII(B) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company are in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue lieu of any transaction which results in Executivepayments, benefits or any group, association or other organization of persons related to, including, or acting in concert with compensation the Executive ("Related Persons"may otherwise be entitled to receive pursuant to Section VIII(A), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Control.

Termination After a Change in Control. (i) In the event Executive's employment If Executive is terminated by the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months during the three-year period following a Change of Controlin Control (as defined in Section 5(f) below) for any reason other than Cause, then Executive shall be entitled to the following: (A) During the longer of (i) the 18-month period following his termination and (ii) the remainder of the Employment Period in effect at the date of termination, and except to the extent prohibited under the terms of any applicable insurance policy, he shall continue to be covered under the Company's welfare benefit plans to the same compensation extent and on the same terms as those benefits described in Section 4(aare provided to the Company's active employees. (B) hereof with respect to any termination by He shall receive from the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental PaymentSEVERANCE PAY"). The Supplemental Payment shall be ) equal to the greater of (i) one and one-half times the sum of (x) the Executive's current Annual Base Salary plus (y) the amount of any bonus paid to Executive in one lump sum within twenty the preceding twelve months and (20ii) days the Annual Base Salary and Annual Bonuses through the end of the then current Employment Period (PROVIDED, that the amount of each of the Annual Bonuses so paid shall equal the Target Annual Bonus). The Severance Pay amount shall be paid (a) if clause (i) in the previous sentence applies, over the 18-month period commencing on the date Executive's employment terminates, in equal monthly or more frequent installments in accordance with the Company's payroll schedule or (b) if clause (ii) in the previous sentence applies, as and when such amounts would be paid in accordance with Sections 3(a) and (b) above. The Company's obligation to provide welfare benefit coverage and make severance payments under this Section 5(c) shall cease with respect to periods after the effective date of such termination, it being the intent earlier to occur of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result date of Executive's employment death, or retention the date, if any, of the breach by another employer in any capacityExecutive of the provisions of Section 6. (ii) A "If Executive terminates his employment hereunder voluntarily following a Change in Control" , then Executive shall not be entitled to Severance Pay; provided, however, that if Executive terminates his employment for Good Reason (as defined below) during the three-year period following a Change in Control, such termination shall not be considered a voluntary termination by Executive and Executive shall be deemed treated as if he had been terminated by the Company pursuant to have occurred if paragraph (i) any of this Section 5(e) above. "PersonGOOD REASON" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934means, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such following a Change of Control for a period of 12 months following such Change of in Control.:

Termination After a Change in Control. This Agreement may be terminated by either of the Employers (or any successor employer) or the Executive following a change in control, subject to the payment of the compensation and other benefits specified in Section 5 hereof or described below, as applicable. If Executive’s employment shall be terminated subsequent to a change in control by (i) In the event Executive's employment is terminated by the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent either of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive Employers other than for cause, disability, retirement or as a result of the Executive's employment or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan")’s death, or (ii) the Company Executive for good reason, then, subject to the provisions of Section 6(iv) hereof if applicable: (A) In lieu of any further salary payments to Executive subsequent to the Termination Date, Executive shall merge receive Severance Pay for a thirty-six (36) month period. Payments shall be made in accordance with the Employers’ normal payroll practices, beginning with the first pay date following the Termination Date. The monthly rate of Severance Pay shall be the average monthly Base Salary received by Executive (based on his highest rate of Base Salary within the 3 years preceding his Termination Date) plus one-twelfth of the total bonus and incentive compensation paid to or consolidate into any vested in Executive on the basis of his most recently completed calendar year of employment. (B) Employers shall maintain and provide for the period during which Severance Payments are to be made and ending at the earlier of (i) the expiration of such period, or (ii) the date of the Executive’s full-time employment by another employer (provided that the Executive is entitled under the terms of such other entityemployment to benefits substantially similar to those described in this Subparagraph (B)), at no cost to the Executive, the Executive’s continued participation in all group life, health and accident and disability insurance and all other employee benefit plans, programs and arrangements in which the Executive was entitled to participate immediately prior to the Termination Date (other than a merger retirement and deferred compensation plans and individual insurance policies covered under Subsection 6(iii)(C) or consolidation which would result stock compensation plans of the Employers), provided that in the holders event Executive’s participation in any plan, program or arrangement as provided in this Subparagraph (B) is barred, or during such period any such plan, program or arrangement is discontinued or the benefits thereunder are materially reduced, the Employers shall arrange to provide Executive with benefits substantially similar to those Executive was entitled to receive under such plans, programs and arrangements immediately prior to the Termination Date. (C) Executive shall also receive all other compensation and benefits in which he was vested or to which he was otherwise entitled under section 4 and the plans and programs provided therein by reason of employment through the Termination Date. In addition to benefits to which Executive is entitled under retirement and deferred compensation plans and individual insurance policies maintained by Employers (hereinafter collectively referred to as “Plan”), Executive shall receive, to the extent a benefit previously provided cannot be continued or extended through the Severance Pay period in its current form, as additional severance benefits a benefit paid under this Agreement, which benefit (other than the additional SERP benefit) shall be determined in accordance with and paid under this Agreement, but in the form and at the times provided in the Plan. Such benefits (other than the additional SERP benefit) shall be determined as if Executive were fully vested under the Plan and had accumulated (after any termination under this Agreement) the additional years of credit service under the applicable Plan that he would have received had he continued in the employment of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement Bank for the sale or disposition period during which Severance Payments are to be made and at the annual compensation level represented by such payments. The additional SERP benefit will be paid immediately following the Company of all or substantially all of Termination Date with the Company's assetsadditional SERP benefit determined by including the three years during which Severance Payments are made in the ten years which are used for determining final Average Earnings under the SERP. Notwithstanding the foregoing, no Change in Control of the Company Such Severance Payment level shall be deemed to have occurred represent the compensation received by virtue Executive during each such additional year for purposes of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"determining his additional benefits under this Subsection 6(iii)(C), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Control.

Termination After a Change in Control. (i) In the event Executive's employment If Executive is terminated by the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months during the three-year period following a Change of Controlin Control (as defined in Section 5(f) below) for any reason other than Cause, then Executive shall be entitled to the following: (A) During the longer of (i) the 18-month period following his termination and (ii) the remainder of the Employment Period in effect at the date of termination, and except to the extent prohibited under the terms of any applicable insurance policy, he shall continue to be covered under the Company's welfare benefit plans to the same compensation extent and on the same terms as those benefits described in Section 4(aare provided to the Company's active employees. (B) hereof with respect to any termination by He shall receive from the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental PaymentSEVERANCE PAY"). The Supplemental Payment shall be ) equal to the greater of (i) one and one-half times the sum of (x) the Executive's current Annual Base Salary plus (y) the amount of any bonus paid to Executive in one lump sum within twenty the preceding twelve months and (20ii) days the Annual Base Salary and Annual Bonuses through the end of the then current Employment Period (PROVIDED, that the amount of each of the Annual Bonuses so paid shall equal the Target Annual Bonus). The Severance Pay amount shall be paid (a) if clause (i) in the previous sentence applies, over the 18-month period commencing on the date Executive's employment terminates, in equal monthly or more frequent installments in accordance with the Company's payroll schedule or (b) if clause (ii) in the previous sentence applies, as and when such amounts would be paid in accordance with Sections 3(a) and (b) above. The Company's obligation to provide welfare benefit coverage and make severance payments under this Section 5(e) shall cease with respect to periods after the effective date of such termination, it being the intent earlier to occur of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result date of Executive's employment death, or retention the date, if any, of the breach by another employer in any capacityExecutive of the provisions of Section 6. (ii) A "If Executive terminates his employment hereunder voluntarily following a Change in Control" , then Executive shall not be entitled to Severance Pay; provided, however, that if Executive terminates his employment for Good Reason (as defined below) during the three-year period following a Change in Control, such termination shall not be considered a voluntary termination by Executive and Executive shall be deemed treated as if he had been terminated by the Company pursuant to have occurred if paragraph (i) any of this Section 5(e) above. "PersonGOOD REASON" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934means, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue of any transaction which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such following a Change of Control for a period of 12 months following such Change of in Control.:

Termination After a Change in Control. In the event of a "Change in ------------------------------------- Control" of the Company (as defined as of the date hereof in the Company's 1996 Stock Incentive Plan for Employees), if, within twenty- four (24) months following the closing of such a Change in Control (or at any time prior thereto but in contemplation thereof): (i) In There is a material reduction in the event ExecutiveEmployee's employment is terminated by the Company without Causetitle, authority or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employmentresponsibilities, within 12 months following a Change of Control, Executive shall be entitled to the same compensation and benefits described in Section 4(a) hereof with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity.including reporting responsibilities; (ii) A "The Employee's Annual Base Salary is reduced; (iii) The Employee's office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to the Change in Control" shall be deemed ; (iv) The Company fails to have occurred if continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit; (iv) The Company fails to continue in effect any "Person" employee benefit plan (as such term is used including any medical, hospitalization, life insurance, dental or disability benefit plan in Section 13(dwhich the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Securities Exchange Act Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent; (vi) The Company breaches any material provision of 1934, as amended this Employment Agreement; or (the "Exchange Act")vii) becomes the "beneficial owner" (as determined pursuant The Company fails to Rule 13d-3 under the Exchange Act), directly obtain a satisfactory agreement from any successor or indirectly, of securities assign of the Company representing more than fifty percent to assume and agree to perform this Employment Agreement; Then the Employee shall have the option to voluntarily terminate his employment and the Company shall: (50%a) Pay the Employee his full base salary earned but not yet paid through the Termination Date at the greater of the combined voting power rate in effect at the time of the Company's then outstanding securities, other than any person who acquires five percent Change in Control or the Termination Date (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 PlanHigher Annual Base Salary"), plus any bonuses or (ii) incentive compensation which, pursuant to the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control of the Company shall be deemed to have occurred by virtue terms of any transaction which results in Executivecompensation or benefit plan, or any group, association or other organization have been earned and are payable as of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Control.the

Termination After a Change in Control. (i) In the event Executive's employment is terminated by that a Change in Control occurs and the Company terminates the Employee’s employment without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, Cause within 12 months following thereafter or the Employee resigns for Good Reason within 12 months thereafter, then: (a) the Company will provide the Employee with severance benefits in an amount of twelve (12) months of your then existing base salary, less payroll deductions and all required withholdings, paid either (at the Company’s discretion) in a lump sum or in a regular payments at equal intervals over a period of time not to exceed 12 months, and (b) all stock options held by the Employee shall have their vesting accelerated such that they are fully vested and exercisable as of the date of the Change of ControlControl Termination (the “Acceleration”), Executive provided that, as a precondition of receiving the payments and benefits under this paragraph, the Employee must first sign and allow to become effective a general release of claims in favor of the Company in a form acceptable to the Company. Notwithstanding the foregoing, the Employee shall not be entitled to any payments or benefits pursuant to this paragraph upon the same compensation and benefits described in Section 4(a) hereof termination of his employment with respect to any termination by the Company without Cause, PLUS an amount equal to Executive's annual base salary on the effective date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity. (ii) A "Change in Control" shall be deemed to have occurred if (i) any "Person" (as such term is used termination occurs in Section 13(d) connection with the Employee commencing employment with an Intevac Entity, in which case the terms of this section 2 shall then apply with equal force and effect to the Securities Exchange Act of 1934, as amended (Employee’s employment with the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan")Intevac Entity, or (ii) in connection with a Change in Control pursuant to section 1(a) above, the Company shall merge with person or consolidate into any other entityentity that acquires Intevac or division in which the Employee works, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets. Notwithstanding the foregoing, no Change in Control assets of the Company shall be deemed Intevac division in which the Employee works, offers the Employee a job that is comparable to have occurred by virtue the Employee’s job with Intevac in terms of any transaction responsibility, compensation and benefits within 90 days of the date on which results in Executive, or any group, association or other organization of persons related to, including, or acting in concert the Employee’s employment with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of ControlIntevac terminates.

Termination After a Change in Control. (i) In If the event Executive's Employee terminates his employment with the Bank for any reason during the Window Period after a Change in Control or the Employee’s employment is terminated by without Cause during the Company without Cause, or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, within 12 months following Window Period after a Change of in Control, Executive shall the Employee will be entitled to the same compensation and benefits described sum of Accrued Obligations (as defined in Section 4(a12(a)(iii)) hereof with respect plus a cash amount (subject to any termination by the Company without Cause, PLUS an amount applicable payroll or other taxes required to be withheld) equal to Executive's annual the excess, if any, of 299% of the Employee’s “annualized includable compensation for the base salary period,” as defined in Code Section 280G, over the total amount payable to the Employee under Section 12(a)(i), payable in a single lump sum on the effective date Date of termination (the "Supplemental Payment"). The Supplemental Payment shall be paid to Executive in one lump sum within twenty (20) days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacityTermination. (ii) A "Change Employee may elect, prior to December 31, 2007, to have the cash amount (other than the Accrued Obligations) to which he is entitled under Section 12(d)(i) paid in Control" 24 or 36 equal monthly installments, with the first installment paid on the date of termination or resignation and the remaining installments paid on the first day of each succeeding month. Such election shall not apply to amounts otherwise payable in the year the election is made, nor cause amounts to be paid in the year the election is made that would not otherwise be payable in that year. Subsequent changes to the time or form of payment of such cash amount shall be deemed made only in accordance with Code Section 409A, the 409A Regulations, and other applicable guidance, including any transition rules promulgated by the Internal Revenue Service. (iii) Notwithstanding the foregoing, the timing of an amount payable to a Key Employee under Section 12(d) (whether or not subject to an installment election) shall be determined as follows: the lump sum payment shall be made or installments shall commence on the first day of the month following the six-month anniversary of Employee’s Date of Termination. The initial payment made under the preceding sentence shall include amounts that would have occurred if been paid under Section 12(d) through the date of such initial payment had the Employee not been a Key Employee. Accrued Obligations payable to a Key Employee under Section 12(d) shall be paid on the first day of the month following the six-month anniversary of the Employee’s Date of Termination. (iv) For purposes of this Agreement, a “Change of Control” occurs if, after the date of this Agreement, (i) any "Person" (person, including a “group” as such term is used defined in Section 13(d13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "owner or beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly owner of Bank securities having 50% or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, Bank securities that may be cast for the election of the Bank’s directors other than any person who acquires five percent (5%) as a result of an issuance of securities initiated by the Bank, or more open market purchases approved by the Board of Directors, as long as the majority of the outstanding common stock Board of Directors approving the Company in accordance with purchases is a plan of reorganization under chapter 11 of Title 11 of majority at the United States Code (a "Chapter 11 Plan"), time the purchases are made; or (ii) as the Company shall merge with direct or consolidate into any other entityindirect result of, other than or in connection with, a tender or exchange offer, a merger or consolidation which would result in other business combination, a sale of assets, a contested election of directors, or any combination of these events, the holders persons who were directors of the voting securities Bank before such events cease to constitute a majority of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) Bank’s Board, or any successor’s board, within two years of the combined voting power last of such transactions. For purposes of this Agreement, a Change of Control occurs on the date on which an event described in (i) or (ii) occurs. If a Change of Control occurs on account of a series of transactions or events, the Change of Control occurs on the date of the voting securities last of such transactions or events. (v) It is the intention of the Company parties that no payment be made or such surviving entity outstanding immediately after such merger or consolidation or (iii) benefit provided to Employee pursuant to this Agreement that would constitute an “excess parachute payment” within the stockholders meaning of Section 280G of the Company approve Code and effect any regulations thereunder, thereby resulting in a loss of an agreement income tax deduction by the Bank or the imposition of an excise tax on Employee under Section 4999 of the Code. If the independent accountants serving as auditors for the sale Bank on the date of a Change of Control (or disposition any other accounting firm designated by the Company of all Bank) determine that some or substantially all of the Company's assets. Notwithstanding the foregoingpayments or benefits scheduled under this Agreement, no Change in Control of the Company shall be deemed to have occurred by virtue of as well as any transaction which results in Executive, other payments or any group, association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any interest in the Company which would otherwise constitute benefits on a Change of Control, would be nondeductible by the Company under Section 280G of the Code, then the payments scheduled under this Agreement will be reduced to one dollar less than the maximum amount which may be paid without causing any such payment or benefit to be nondeductible. FurtherThe determination made as to the reduction of benefits or payments required hereunder by the independent accountants shall be binding on the parties. Employee shall have the right to designate within a reasonable period, which payments or benefits will be reduced; provided, however, that if no direction is received from Employee, the restriction Bank shall implement the reductions in the preceding sentence shall apply in the event of Executive's employment by, or any other business affiliation with, any such Related Persons or the Company after such Change of Control for a period of 12 months following such Change of Controlits discretion.