Common use of Termination by Company without Cause or by Executive for Good Reason Clause in Contracts

Termination by Company without Cause or by Executive for Good Reason. (i) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a severance payment consisting of (A) a cash amount equal to 2.99 times the sum of the current calendar year’s Base Salary and the prior year’s Cash Incentive Bonus, (B) reimbursement of COBRA health insurance premiums as described below for up to 36 months from the date of termination, and (C) acceleration to 100% vested status for all stock, stock option and other equity awards currently held by Executive to the extent such awards (other than stock options and stock appreciation rights) are not subject to performance-based vesting for purposes of qualifying as “performance-based compensation” for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended (the “CODE”). If no Cash Incentive Bonus was paid for the year before the year in which termination occurs, for purposes of the bonus component of the severance payable under (A) of the preceding sentence, Executive shall be entitled to 2.99 times the higher of: (A) the Executive’s target bonus for the year of termination under the Company’s Annual Incentive Plan, and (B) any discretionary bonuses paid to Executive within the 12 month period preceding termination. (ii) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the prorated Cash Incentive Bonus will be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relates. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after Executive’s date of termination. If the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of the cash severance amount under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of health insurance reimbursement under subsection (iv). Executive shall not be entitled to the remainder of the cash severance payment under subsection (i) or the second half of health insurance reimbursement under subsection (iv), unless Executive gives notice to the Company within 30 days before the conclusion of 50% of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine (9) months and 15 days following the Executive’s date of termination. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 months from the date of termination, provided that the Company’s health plan permits such extension and such extension will not cause adverse tax consequences to the Company or Executive. These reimbursements will commence on the 60th day following the date of termination and will be paid on the first payroll date of each month, provided that Executive demonstrates proof of payment of the applicable premium prior to the applicable reimbursement payment date. (v) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance payment under this SECTION 3.2 is payable and the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individual.

Termination by Company without Cause or by Executive for Good Reason. (i) If Executive’s employment is terminated by the Company without Cause or by Executive for Good ReasonReason outside of the Protection Period (defined below), and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a severance payment consisting of (A) a cash amount equal to 2.99 2.0 times the sum of the current calendar year’s Base Salary and plus 1.0 times the prior year’s greater of (1) the average amount of the Cash Incentive BonusBonuses paid to the Executive during the two full calendar years immediately prior to the year in which the Executive’s separation from service occurs (the “AVERAGE BONUS”) or (2) the Target Bonus for the year in which the separation from service occurs, (B) reimbursement of COBRA health insurance premiums as described below for up to 36 months from the date of termination, and (C) pro-rata acceleration to 100% vested status for all time-based vesting stock, stock option and other equity awards currently held by Executive, with pro-rata acceleration calculated by multiplying the number of outstanding shares by a fraction, the numerator of which will be the number of full calendar months during the applicable vesting period that the Executive to was actively employed by the extent such awards Company, plus one, and the denominator of which is the number of full calendar months within the applicable vesting period; and (other than stock options and stock appreciation rightsD) are not subject to pro-rata adjustment of all performance-based vesting for purposes of qualifying as “performance-based compensation” for purposes of equity awards currently held by Executive (whether or not such awards are subject to Section 162(m) of the Internal Revenue Code of 1986, as amended (the “CODE”). If no Cash Incentive Bonus was paid for ), with pro-rata adjustment applicable only to the year before target number of shares subject to the year applicable award in which termination occursaccordance with the same formula set forth in clause (C) above, for purposes with the resulting reduced number of performance-based awards remaining subject to all applicable performance metrics during the bonus component of the severance payable under (A) of the preceding sentence, Executive shall be entitled full performance period applicable to 2.99 times the higher of: (A) the Executive’s target bonus for the year of termination under the Company’s Annual Incentive Plan, and (B) any discretionary bonuses paid to Executive within the 12 month period preceding terminationsuch award. (ii) For purposes of this Agreement, the “PROTECTION PERIOD” shall mean the period of time that begins on the date that a Change of Control transaction is consummated, and ends on the last day of the 18th month immediately following the consummation of the Change of Control transaction. If Executive’s employment is terminated by the Company without Cause or by Executive for Good ReasonReason within Protection Period, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive will not be entitled to the compensation provided in subsection (i) above, but instead shall, subject to the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive severance payment consisting of a cash amount equal to 2.0 times the current calendar year’s Base Salary plus 2.0 times the greater of (1) the Average Bonus or (2) the Target Bonus for the year in which the date of termination separation from service occurs, based on attainment reimbursement of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the prorated Cash Incentive Bonus will be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relates. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after Executive’s date of termination. If the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of the cash severance amount under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of COBRA health insurance reimbursement under subsection (iv). Executive shall not be entitled premiums as described below for up to the remainder of the cash severance payment under subsection (i) or the second half of health insurance reimbursement under subsection (iv), unless Executive gives notice to the Company within 30 days before the conclusion of 50% of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine (9) months and 15 days following the Executive’s date of termination. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 months from the date of termination, provided that 100% full acceleration for all time-based vesting stock, stock option and other equity awards currently held by Executive; and (D) full acceleration of any time-based component of all performance-based equity awards currently held by Executive (whether or not such awards are subject to Section 162(m) of Code), with actual performance for the Company’s health plan permits such extension and such extension will not cause adverse tax consequences to performance-based portion of the Company or Executive. These reimbursements will commence on award calculated as if the 60th day following end of the applicable performance period was the date of termination and will be paid on the first payroll date of each month, provided that Executive demonstrates proof of payment of the applicable premium prior to the applicable reimbursement payment dateExecutive’s separation from service. (v) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance payment under this SECTION 3.2 is payable and the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individual.

Termination by Company without Cause or by Executive for Good Reason. (i) If Executive’s employment is terminated by the Company without Cause or by Executive for Good ReasonReason outside of the Protection Period (defined below), and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a severance payment consisting of (A) a cash amount equal to 2.99 2.0 times the sum of the current calendar year’s Base Salary and plus 1.0 times the prior year’s greater of (1) the average amount of the Cash Incentive BonusBonuses paid to the Executive during the two full calendar years immediately prior to the year in which the Executive’s separation from service occurs (the “AVERAGE BONUS”) or (2) the Target Bonus for the year in which the separation from service occurs, (B) reimbursement of COBRA health insurance premiums as described below for up to 36 30 months from the date of termination, and (C) pro-rata acceleration to 100% vested status for all time-based vesting stock, stock option and other equity awards currently held by Executive, with pro-rata acceleration calculated by multiplying the number of outstanding shares by a fraction, the numerator of which will be the number of full calendar months during the applicable vesting period that the Executive to was actively employed by the extent such awards Company, plus one, and the denominator of which is the number of full calendar months within the applicable vesting period; and (other than stock options and stock appreciation rightsD) are not subject to pro-rata adjustment of all performance-based vesting for purposes of qualifying as “performance-based compensation” for purposes of equity awards currently held by Executive (whether or not such awards are subject to Section 162(m) of the Internal Revenue Code of 1986, as amended (the “CODE”). If no Cash Incentive Bonus was paid for ), with pro-rata adjustment applicable only to the year before target number of shares subject to the year applicable award in which termination occursaccordance with the same formula set forth in clause (C) above, for purposes with the resulting reduced number of performance-based awards remaining subject to all applicable performance metrics during the bonus component of the severance payable under (A) of the preceding sentence, Executive shall be entitled full performance period applicable to 2.99 times the higher of: (A) the Executive’s target bonus for the year of termination under the Company’s Annual Incentive Plan, and (B) any discretionary bonuses paid to Executive within the 12 month period preceding terminationsuch award. (ii) For purposes of this Agreement, the “PROTECTION PERIOD” shall mean the period of time that begins on the date that a Change of Control transaction is consummated, and ends on the last day of the 18th month immediately following the consummation of the Change of Control transaction. If Executive’s employment is terminated by the Company without Cause or by Executive for Good ReasonReason within Protection Period, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive will not be entitled to the compensation provided in subsection (i) above, but instead shall, subject to the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive severance payment consisting of a cash amount equal to 2.0 times the current calendar year’s Base Salary plus 2.0 times the greater of (1) the Average Bonus or (2) the Target Bonus for the year in which the date of termination separation from service occurs, based on attainment reimbursement of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the prorated Cash Incentive Bonus will be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relates. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after Executive’s date of termination. If the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of the cash severance amount under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of COBRA health insurance reimbursement under subsection (iv). Executive shall not be entitled premiums as described below for up to the remainder of the cash severance payment under subsection (i) or the second half of health insurance reimbursement under subsection (iv), unless Executive gives notice to the Company within 30 days before the conclusion of 50% of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine (9) months and 15 days following the Executive’s date of termination. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 months from the date of termination, provided that 100% full acceleration for all time-based vesting stock, stock option and other equity awards currently held by Executive; and (D) full acceleration of any time-based component of all performance-based equity awards currently held by Executive (whether or not such awards are subject to Section 162(m) of Code), with actual performance for the Company’s health plan permits such extension and such extension will not cause adverse tax consequences to performance-based portion of the Company or Executive. These reimbursements will commence on award calculated as if the 60th day following end of the applicable performance period was the date of termination and will be paid on the first payroll date of each month, provided that Executive demonstrates proof of payment of the applicable premium prior to the applicable reimbursement payment dateExecutive’s separation from service. (v) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance payment under this SECTION 3.2 is payable and the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individual.

Termination by Company without Cause or by Executive for Good Reason. (i) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a severance payment consisting of (A) a cash amount equal to 2.99 two times the sum of the current calendar year’s Base Salary and the prior year’s Cash Incentive Bonus, (B) reimbursement of COBRA health insurance premiums as described below for up to 36 24 months from the date of termination, and (C) acceleration to 100% vested status for all stock, stock option and other equity awards currently held by Executive to the extent such awards (other than stock options and stock appreciation rights) are not subject to performance-based vesting for purposes of qualifying as “performance-based compensation” for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended (the “CODE”). If no Cash Incentive Bonus was paid for the year before the year in which termination occurs, for purposes of the bonus component of the severance payable under (A) of the preceding sentence, Executive shall be entitled to 2.99 two times the higher of: (A) the Executive’s target bonus for the year of termination under the Company’s Annual Incentive Plan, and (B) any discretionary bonuses paid to Executive within the 12 month period preceding termination. (ii) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the prorated Cash Incentive Bonus will be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relates. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after Executive’s date of termination. If the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of the cash severance amount under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of health insurance reimbursement under subsection (iv). Executive shall not be entitled to the remainder of the cash severance payment under subsection (i) or the second half of health insurance reimbursement under subsection (iv), unless Executive gives notice to the Company within 30 days before the conclusion of 50% of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine six (96) months and 15 days following the Executive’s date of termination. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 24 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 24 months from the date of termination, provided that the Company’s health plan permits such extension and such extension will not cause adverse tax consequences to the Company or Executive. These reimbursements will commence on the 60th day following the date of termination and will be paid on the first payroll date of each month, provided that Executive demonstrates proof of payment of the applicable premium prior to the applicable reimbursement payment date. (v) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance payment under this SECTION 3.2 is payable and the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individual.

Termination by Company without Cause or by Executive for Good Reason. If the Company terminates Executive’s employment pursuant to Section 4.1 without Cause, or if Executive terminates his employment with the Company for Good Reason under Section 4.5, then, in addition to the payments and benefits described in Section 5.1, the Company shall, contingent upon Executive complying with the terms thereof and with the provisions of Sections 6, 7, 8 and 9 hereof: (i) If Executive’s employment is terminated pay the total of the Cash Awards (if not previously paid and without regard to the requirement that Executive be employed by the Company without Cause or by Executive for Good Reasonits successor on the applicable dates) in a lump sum payment within forty-five (45) days following Executive’s separation from service; (ii) pay the Additional Payment (if not previously paid, and subject without regard to the requirements that the Merger have been consummated or that Executive be employed by the Company on March 31, 2017); (iii) pay annual incentive as, and at the time described in Section 5.2, with respect to terminations due to death or disability; and (iv) provide continued vesting of the Options over the twenty-four (24) month period commencing on the date of Executive’s termination of employment (or such earlier date as the Company’s obligations hereunder cease due to Executive’s compliance failure to comply with the conditions set forth in SECTION 3.3, Executive shall, subject to terms of the Release or with the provisions of this SECTION 3.2Sections 6, 7, 8 and 9 hereof); provided, however, that any Options that were vested on the Executive’s date of termination shall be entitled to a severance payment consisting of (A) a cash amount equal to 2.99 times exercisable in accordance with the sum terms of the current calendar year’s Base Salary applicable Option Agreement and the prior year’s Cash Incentive Bonus, (B) reimbursement of COBRA health insurance premiums as described below period for up to 36 months from the date of terminationexercise shall not be extended hereby, and Options that vest under this clause (Cv) acceleration to 100% vested status for all stock, stock option and other equity awards currently held by Executive to shall be exercisable in accordance with the extent such awards (other than stock options and stock appreciation rights) are not subject to performance-based vesting for purposes of qualifying as “performance-based compensation” for purposes of Section 162(m) terms of the Internal Revenue Code applicable Option Agreement as though the Executive terminates employment on the last day of 1986such extended vesting period. 5.4.1 Except as provided in Section 5.4.2, as amended if termination triggering the amount in clause (the “CODE”). If no Cash Incentive Bonus was paid for the year before the year in which termination occurs, for purposes of the bonus component of the severance payable under (Aii) of the preceding sentenceparagraph occurs prior to the Effective Time, Executive such amount shall be entitled to 2.99 times paid in equal monthly installments over a twenty-four (24) month period and paid on the higher of: (A) the Executive’s target bonus for the year of termination under the Company’s Annual Incentive Plan, and (B) any discretionary bonuses paid same payroll schedule applicable to Executive within immediately prior to his termination of employment commencing on the 12 month first such payroll date on or following the tenth (10th) day after the date on which the Release required by Section 5.6 becomes effective and non-revocable. If the period preceding terminationfor review of the Release ends in a later calendar year, such first payment shall be made in the later calendar year regardless of when the Release is executed. Any amounts that are withheld from payment pending the Release becoming effective shall be paid with the first installment payment following the Release effective date and shall not extend the payment period. 5.4.2 Notwithstanding the foregoing, if termination triggering the amounts in clause (ii) If Executive’s employment is terminated by of Section 5.4 occurs at or following the Company without Cause or by Executive for Good ReasonEffective Time, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five clause (365). Payment of the prorated Cash Incentive Bonus will ii) shall be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relates. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after first date as of which severance would otherwise be paid as described in Section 5.4.1. 5.4.3 Executive shall bear full responsibility for applying COBRA continuation coverage and for obtaining coverage under any other insurance policy following termination of employment, and nothing herein shall constitute a guarantee of COBRA continuation coverage or benefits or a guarantee of eligibility for health, dental, long term disability or term life insurance coverage. 5.4.4 At any time the Company is a corporation described in Section 280G(b)(5)(A)(ii)(I) of the Code, it the Company’s independent public accountants (the “Accountants”) determine that any amount under this Agreement or otherwise payable to Executive constitutes a “parachute payment” within the meaning of Section 280G of the Code (any such amount, a “Parachute Payment”), will be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), if Executive requests shareholder approval of such Parachute Payments and waives his right to receive all or a portion of the Parachute Payments unless such Parachute Payments are approved by the shareholders pursuant to Treas. Reg. Section 1.280G-1, Q&A-7 (or successor provision), the Company shall in good faith use its best efforts to seek approval of payment of such waived Parachute Payments in accordance with the shareholder approval requirements described in Treas. Reg. Section 1.280G-1, Q&A-7 (or successor provision). 5.4.5 In the event amounts payable hereunder are contingent on a Change in Control for purposes of Section 280G of the Code, and it is determined by a public accounting firm or legal counsel authorized to practice before the Internal Revenue Service selected by the Company that any payment or benefit made or provided to Executive in connection with this Agreement or otherwise (collectively, a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code (the “Parachute Tax”), the Payments under this Agreement shall be payable in full or, if applicable, in such lesser amount which would result in no portion of such Payments being subject to the Parachute Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Parachute Tax, results in Executive’s date receipt, on an after-tax basis, of terminationthe greatest amount of Payments under this Agreement. If Payments are reduced pursuant to this paragraph, the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of Cash Awards and the cash severance amount Additional Payment under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of health insurance reimbursement under subsection (iv). Executive shall not be entitled to the remainder of the cash severance payment under subsection Sections 5.4 (i) or (ii) shall first be reduced, and the second half of health insurance reimbursement other benefits under subsection (iv)this Agreement shall thereafter be reduced, unless Executive gives notice to the Company within 30 days before the conclusion of 50% extent necessary so that no portion of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled Payments is subject to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine (9) months and 15 days following the Executive’s date of terminationParachute Tax. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 months from the date of termination, provided that the Company’s health plan permits such extension and such extension will not cause adverse tax consequences to the Company or Executive. These reimbursements will commence on the 60th day following the date of termination and will be paid on the first payroll date of each month, provided that Executive demonstrates proof of payment of the applicable premium prior to the applicable reimbursement payment date. (v) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance payment under this SECTION 3.2 is payable and the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individual.

Termination by Company without Cause or by Executive for Good Reason. (i) If Subject to Section 21 and except during a Change of Control Period, if Executive’s 's employment is hereunder and the Employment Period are terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a severance payment consisting of (A) a cash amount equal to 2.99 times the sum of the current calendar year’s Base Salary and the prior year’s Cash Incentive Bonus, (B) reimbursement of COBRA health insurance premiums as described below for up to 36 months from the date of termination, and (C) acceleration to 100% vested status for all stock, stock option and other equity awards currently held by Executive to the extent such awards (other than stock options and stock appreciation rights) are not subject to performance-based vesting for purposes of qualifying as “performance-based compensation” for purposes of Section 162(m) of the Internal Revenue Code of 1986, as amended (the “CODE”). If no Cash Incentive Bonus was paid for the year before the year in which termination occurs, for purposes of the bonus component of the severance payable under (A) of the preceding sentence, Executive shall be entitled to 2.99 payment of: (i) Executive's accrued but unpaid Base Salary through the date of termination; (ii) any accrued, unused vacation pay at the rate of Executive's then Base Salary and any properly documented reimbursable expenses owed to Executive; (iii) any amount arising from Executive's participation in, or benefits under any employee benefit plans, programs, or arrangements, which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs, or arrangements, including without limitation any amount earned under any STIP or LTIP but not paid prior to the termination (clauses (i), (ii) and (iii) of this Section 5(b), collectively, the "Accrued Obligations"); (iv) an amount equal to two (2) times Executive's then-current Base Salary paid in equal installments across twelve (12) consecutive months, with the higher of: time of payment of such installments, as applicable, commencing as provided below; (Av) if such termination occurs before the Executive’s completion of an applicable measuring period, Executive will receive the full target bonus for incentive award amount of the year STIP Executive would have received had Executive continued to be employed through the end of termination such period, payable at the same time and in the same form of payment that all STIP awards are payable to STIP participants pursuant to the terms specified in the Bonus Plan; and (vi) if Executive has received awards of equity or other compensation under the LTIP that remain subject to vesting, then the Executive will receive a cash severance equal to the market value of all unvested shares determined using the closing price of Company’s Annual Incentive Plan's common stock as of the date of Executive's termination (or, and (Bif such date is a date on which the Company's common stock is not trading, then the closing price as of the previous trading day). The amounts described in Section 5(b)(iv) any discretionary bonuses will commence to be paid to Executive within the 12 month period preceding termination. sixty (ii60) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance with the conditions set forth in SECTION 3.3, Executive shall, subject to the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the prorated Cash Incentive Bonus will be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relates. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after Executive’s date of termination. If the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of the cash severance amount under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of health insurance reimbursement under subsection (iv). Executive shall not be entitled to the remainder of the cash severance payment under subsection (i) or the second half of health insurance reimbursement under subsection (iv), unless Executive gives notice to the Company within 30 days before the conclusion of 50% of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine (9) months and 15 days following the Executive’s date of termination. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 months from the date of termination, provided that Executive (or, in the Company’s health plan permits such extension event of Executive's death, Executive's estate) has executed and such extension will not cause adverse tax consequences delivered to the Company or Executive. These reimbursements will commence on the 60th day not later than forty-five (45) days following the date of termination an irrevocable general waiver and will release of claims in the form provided by the Company to Executive (or, in the event of Executive's death, Executive's estate) after Executive's termination (the "General Release") and the latest date on which the General Release is subject to revocation has expired. The Accrued Obligations shall be paid no later than as required by law or within thirty (30) days following the date of termination, whichever occurs earlier. As to any amount described in Section 5(b)(iv) that constitutes "nonqualified deferred compensation" within the meaning of Code Section 409A and the regulations and guidance promulgated thereunder (collectively, "Section 409A"), if the sixty (60) day period begins in one calendar year and ends in a second (2nd) calendar year, payment shall always be paid in the second (2nd) calendar year. Once they begin within such sixty (60) day period following termination, the amounts payable pursuant to Section 5(b)(iv) shall be payable in substantially equal consecutive installments over the twelve (12) month period following the date of termination (the "Severance Period") in accordance with the Company's general payroll practices as in effect on the first payroll date of each monthtermination, provided that Executive demonstrates proof of but in no event less frequently than monthly (with the first such payment of the applicable premium prior being in an amount equal to the applicable reimbursement total amount to which Executive would otherwise have been entitled during the period following the date of termination through such payment commencement date. (v). The amount(s) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment payable pursuant to which a severance payment Section 5(b)(v) and Section 5(b)(vi) shall be paid provided the General Release has become effective under this SECTION 3.2 is payable its terms on the date of such payment(s). All payments of amounts described in Section 5(b)(iv), Section 5(b)(v) and Section 5(b)(vi) are subject to Executive's (or in the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individualevent of Executive's death, Executive's estate's) continued compliance with the provisions of Sections 6, 7, 8, 23 and 25 hereof.

Termination by Company without Cause or by Executive for Good Reason. (i) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason: (i) the Company shall pay to Executive his Base Salary and accrued vacation pay through the Date of Termination, and subject as soon as practicable following the Date of Termination; and (ii) the Company shall pay to Executive a payment equal to two times Executive’s compliance with average total cash compensation paid (Base Salary and bonus only) for the conditions set forth in SECTION 3.3two (2) preceding fiscal years of the Company ending prior to termination as soon as practicable following the Date of Termination; (iii) the Company shall reimburse Executive pursuant to Section 5(c) for reasonable expenses incurred, but not paid prior to such termination of employment; (iv) Executive shall, subject to the provisions of this SECTION 3.2, shall be entitled to a severance payment consisting any other rights, compensation and/or benefits as may be due to Executive in accordance with the terms and provisions of (A) a cash amount equal to 2.99 times the sum any agreements, plans or programs of the current calendar year’s Base Salary Company; and (v) any stock options and restricted stock granted to Executive more than one year prior to the prior year’s Cash Incentive Bonus, Date of Termination (B) reimbursement including stock options and restricted stock that vest based on the passage of COBRA health insurance premiums as described below for up to 36 months from the date of terminationtime, and (Cstock options and restricted stock that vest based on performance) acceleration to 100% vested status for all stockshall fully vest as of the Date of Termination. The foregoing notwithstanding, stock option and other equity awards currently held by Executive the total of the severance payments payable under this Section 8(a) shall be reduced to the extent the payment of such awards amounts would cause Executive’s total termination benefits (other than stock options and stock appreciation rightsas determined by Executive’s tax advisor) are not subject to performance-based vesting for purposes of qualifying as constitute an “performance-based compensationexcess” for purposes of parachute payment under Section 162(m) 280G of the Internal Revenue Code of 1986, as amended (the “CODECode”). If no Cash Incentive Bonus was paid for the year before the year in which termination occurs, for purposes ) and by reason of the bonus component of the severance payable such excess parachute payment Executive would be subject to an excise tax under (ASection 4999(a) of the preceding sentenceCode, but only if Executive shall be entitled to 2.99 times determines that the higher of: (A) after-tax value of the Executive’s target bonus for the year of termination under the Company’s Annual Incentive Plan, and (B) any discretionary bonuses paid to Executive within the 12 month period preceding termination. (ii) If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason, and subject to Executive’s compliance benefits calculated with the conditions set forth in SECTION 3.3, Executive shall, subject to foregoing restriction exceed those calculated without the provisions of this SECTION 3.2, be entitled to a prorated Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals. The prorated bonus will be an amount in cash equal to the Executive’s Cash Incentive Bonus for the year in which the date of termination occurs, based on attainment of the applicable corporate performance goals, multiplied by a fraction, the numerator of which is the number of days that Executive was employed by the Company during the year of termination and the denominator of which is three hundred and sixty five (365). Payment of the prorated Cash Incentive Bonus will be made in a lump sum at the same time that other employees of the Company are paid their Cash Incentive Bonuses for the calendar year to which the Cash Incentive Bonus relatesforegoing restriction. (iii) If the severance payment under subsection (i) is to be made as result of termination by the Company without Cause or by Executive for Good Reason within 12 months after a Change of Control, payment of the entire cash severance amount under subsection (i) will be made in a lump sum on the 60th day after Executive’s date of termination. If the Company otherwise terminates Executive without Cause or Executive otherwise terminates his employment for Good Reason, Executive shall receive (A) half of the cash severance amount under subsection (i) in a lump sum on the 60th day after the date of termination and (B) half the number of months of health insurance reimbursement under subsection (iv). Executive shall not be entitled to the remainder of the cash severance payment under subsection (i) or the second half of health insurance reimbursement under subsection (iv), unless Executive gives notice to the Company within 30 days before the conclusion of 50% of the Non-Compete Term that he agrees to comply with SECTION 2.3(c) and SECTION 2.4 for the remainder of the Non-Compete Term and, in consideration therefor, desires to receive the remainder of the severance payment under subsection (i) and the second half of the health insurance reimbursement under subsection (iv), in which event Executive shall be entitled to the additional health insurance reimbursement under subsection (iv) and the remainder of the cash severance payment under subsection (i), payable in a lump sum on the 15th day after the end of the first 50% of the Non-Compete Term, which for purposes of clarity means that the payment date for the remainder of the cash severance payment shall be the date that is nine (9) months and 15 days following the Executive’s date of termination. (iv) If Executive timely elects continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company will reimburse Executive for the monthly COBRA cost of continued health coverage paid by Executive under the applicable health plan of the Company pursuant to Section 4980B of the Code. Subject to subsection (iii) above, such reimbursements shall continue for the period during which the Executive elects continued coverage under COBRA, but not in excess of 36 months. Subject to subsection (iii) above, if Executive is eligible for continued COBRA reimbursement, when COBRA coverage would otherwise end, Executive may elect to extend the COBRA continued coverage under the Company’s health plan until the date that is 36 months from the date of termination, provided that the Company’s health plan permits such extension and such extension will not cause adverse tax consequences to the Company or Executive. These reimbursements will commence on the 60th day following the date of termination and will be paid on the first payroll date of each month, provided that Executive demonstrates proof of payment of the applicable premium prior to the applicable reimbursement payment date. (v) Executive shall not be under any duty or obligation to seek or accept other employment following a termination of employment pursuant to which a severance payment under this SECTION 3.2 is payable and the amounts due Executive pursuant to this SECTION 3.2 shall not be reduced or suspended if Executive accepts subsequent employment or earns any amounts as a self-employed individual.