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

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen (18) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash payments.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen (18) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Paragraph (i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are to first. Any reduction will be made at the same time, non-cash payments will be reduced before cash payments.in a manner that is intended to avoid a tax being incurred under Code Section 409A.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If Upon the employment termination of the Executive is terminated Executive’s employment by the Company without Cause pursuant to Section 4(b) hereof or by the Executive for Good ReasonReason pursuant to Section 4(c) hereof, the Company will shall pay to the Executive one and one-half times (i) that portion of his Base Salary earned through his last day of employment with the sum of Company on its next regularly scheduled payroll date, (Aii) his base salary pursuant to Section 2(a) hereof, plus (B) an amount a severance payment equal to the average annual Bonus Executive’s Base Salary (calculated as a monthly amount) for a period of the earlier of twelve (12) months following the Executive’s last day of employment with the Company or the Executive’s first day of a new position with another Person, (iii) all amounts that are fully vested and properly payable on or before his last day of employment under all retirement plans sponsored by the Company in accordance with the provisions of such plans, and (iv) all other amounts that are properly payable to the Executive by the Company that have not been paid to him on or before his last day of employment. The foregoing monthly severance payment shall begin within thirty (30) days following the Executive’s last day of employment with the Company and all other amounts shall be paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen (18) month period commencing as of the date of termination of employment, provided that the first payment shall be made within sixty (60) days following termination of his last day of employment and shall include all payments accrued from with the date of termination of employment to Company, unless provided otherwise by the date ESOP or by a retirement, incentive compensation or other plan of the first payment; providedCompany. In addition, howeverall outstanding awards of cash bonuses, if stock options, restricted stock and other incentive compensation (whether cash or equity based) shall vest and be paid or distributed to, or be exercisable by, as the case may be, the Executive is in accordance with (I) the applicable Incentive Plan, (II) the applicable Award Agreement, or (III) in the absence of an Incentive Plan or an Award Agreement relating to a “specified employee” within particular award, as determined by the meaning Board of Section 409A Directors (or a committee thereof) or the Chairman of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash paymentsCompany.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half three times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen thirty-six (1836) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Paragraph (i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are to first. Any reduction will be made at the same time, non-cash payments will be reduced before cash payments.in a manner that is intended to avoid a tax being incurred under Code Section 409A.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half two times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen twenty-four (1824) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash payments.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half three times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen thirty-six (1836) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash payments.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years (or such lesser number of completed calendar years during which the Executive was employed by the Company) before that calendar year; provided, further, that if the Executive’s termination of employment occurs in 2007, $40,000 will be paid in lieu of such average annual Bonus. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen a twelve (1812) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first paymentperiod; provided, however, if the Executive is a “"specified employee” " within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if If the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable lawCompany. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash paymentsfirst.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half times a multiple as provided below (the “Severance Multiple”) of the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive by the Company or the Parent for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year; provided, further, that in determining such average annual Bonus and such three calendar year period, the Executive’s annual bonuses and prior period of employment with Aviv shall be taken into account. The Severance Multiple will initially be equal to 1.75 but if termination of employment occurs less than twenty-one (21) months from when the Term would otherwise end, the Severance Multiple will be reduced to be equal to a number of years, calculated to the closest two decimal places, that would be remaining in the Term absent such termination of employment. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over a period of years that is the eighteen (18) month period same as the Severance Multiple commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Section 3(c)(i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are first. Any reduction will be made in a manner that is intended to avoid a tax being incurred under Code Section 409A. In addition, for purposes of Code Section 409A, each installment payment of the severance amount as provided for in this Section 3(c)(i) shall be deemed to be made at the same time, non-cash payments will be reduced before cash paymentsa separate payment.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good ReasonReason and such termination constitutes a Termination of Employment, the Company will pay the Executive one and one-half times the sum of (A) his base salary Base Salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive hereof for the three most recently completed calendar years prior to termination remainder of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar yearTerm. Such amount shall be paid in arrears in substantially equal annual installments not less frequently than twice per month monthly over the eighteen (18) month period commencing as remainder of the date of termination of employment, provided that the first payment shall be made sixty Term commencing within thirty (6030) days following termination of employment and shall include all payments accrued from the effective date of termination of employment to the date of the first paymenttermination; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination Termination of employment thenEmployment, to then such portion of the extent required to avoid payments that would result in a tax under Code Section 409A, payments which would otherwise have been made 409A if paid during the first six (6) months after termination Termination of employment Employment shall be withheld withheld, starting with the payments latest in time during such six (6) month period, and paid to the Executive during the seventh month following the date of his termination Termination of employmentEmployment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable lawCompany. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash paymentsfirst.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half two times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive by the Company or the Parent for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen twenty-four (1824) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Section 3(c) (i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are to first. Any reduction will be made at the same time, non-cash payments will be reduced before cash payments.in a manner that is intended to avoid a tax being incurred under Code Section 409A.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good ReasonReason and such termination constitutes a Termination of Employment, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereofhereof for the remainder of the original Term, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination actual cost of employment; provided, however, that if ninety (90) days of the Executive’s termination of employment occurs before COBRA premium payments, commencing with the BonusCOBRA payment next due after termination, if any, for should the most recently completed calendar year is payable, then Executive elect COBRA (the averaging will be determined by reference to the three most recently completed calendar years before that calendar year“Continuing Benefit”). Such amount shall be paid in arrears in substantially equal annual installments not less frequently than twice per month monthly over the eighteen (18) month period commencing as remainder of the date of termination of employment, provided that the first payment shall be made sixty original Term commencing within thirty (6030) days following termination of employment and shall include all payments accrued from the effective date of termination of employment to the date of the first paymenttermination; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination Termination of employment thenEmployment, to then such portion of the extent required to avoid payments that would result in a tax under Code Section 409A, payments which would otherwise have been made 409A if paid during the first six (6) months after termination Termination of employment Employment shall be withheld withheld, starting with the payments latest in time during such six (6) month period, and paid to the Executive during the seventh month following the date of his termination Termination of employmentEmployment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable lawCompany. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash paymentsfirst.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If Upon the employment termination of the Executive is terminated Executive’s employment by the Company without Cause pursuant to Section 4(b) hereof or by the Executive for Good ReasonReason pursuant to Section 4(c) hereof, the Company will shall pay to the Executive one and one-half times (i) that portion of her Base Salary earned through her last day of employment with the sum of Company on its next regularly scheduled payroll date, (Aii) his base salary pursuant to Section 2(a) hereof, plus (B) an amount a severance payment equal to the average annual Bonus Executive’s Base Salary (calculated as a monthly amount) for a period of the earlier of twelve (12) months following the Executive’s last day of employment with the Company or the Executive’s first day of a new position with another Person, (iii) all amounts that are fully vested and properly payable on or before her last day of employment under all retirement plans sponsored by the Company in accordance with the provisions of such plans, and (iv) all other amounts that are properly payable to the Executive by the Company that have not been paid to her on or before her last day of employment. The foregoing monthly severance payment shall begin within thirty (30) days following the Executive’s last day of employment with the Company and all other amounts shall be paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen (18) month period commencing as of the date of termination of employment, provided that the first payment shall be made within sixty (60) days following termination of her last day of employment and shall include all payments accrued from with the date of termination of employment to Company, unless provided otherwise by the date ESOP or by a retirement, incentive compensation or other plan of the first payment; providedCompany. In addition, howeverall outstanding awards of cash bonuses, if stock options, restricted stock and other incentive compensation (whether cash or equity based) shall vest and be paid or distributed to, or be exercisable by, as the case may be, the Executive is in accordance with (I) the applicable Incentive Plan, (II) the applicable Award Agreement, or (III) in the absence of an Incentive Plan or an Award Agreement relating to a “specified employee” within particular award, as determined by the meaning Board of Section 409A Directors (or a committee thereof) or the Chairman of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash paymentsCompany.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half three times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive by the Company or the Parent for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen thirty-six (1836) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Section 3(c) (i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are to first. Any reduction will be made at the same time, non-cash payments will be reduced before cash payments.in a manner that is intended to avoid a tax being incurred under Code Section 409A.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good ReasonReason and such termination constitutes a Termination of Employment, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereofhereof for the remainder of the Term, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination actual cost of employment; provided, however, that if ninety (90) days of the Executive’s termination of employment occurs before COBRA premium payments, commencing with the BonusCOBRA payment next due after termination, if any, for should the most recently completed calendar year is payable, then Executive elect COBRA (the averaging will be determined by reference to the three most recently completed calendar years before that calendar year“Continuing Benefit”). Such amount shall be paid in arrears in substantially equal annual installments not less frequently than twice per month monthly over the eighteen (18) month period commencing as remainder of the date of termination of employment, provided that the first payment shall be made sixty original Term commencing within thirty (6030) days following termination of employment and shall include all payments accrued from the effective date of termination of employment to the date of the first paymenttermination; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination Termination of employment thenEmployment, to then such portion of the extent required to avoid payments that would result in a tax under Code Section 409A, payments which would otherwise have been made 409A if paid during the first six (6) months after termination Termination of employment Employment shall be withheld withheld, starting with the payments latest in time during such six (6) month period, and paid to the Executive during the seventh month following the date of his termination Termination of employmentEmployment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable lawCompany. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash paymentsfirst.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half two times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen twenty-four (1824) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Paragraph (i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are to first. Any reduction will be made at the same time, non-cash payments will be reduced before cash payments.in a manner that is intended to avoid a tax being incurred under Code Section 409A.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen twelve (1812) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. If payments are to be reduced, the payments made latest in time will be reduced first and if any payments are to be made at the same time, non-cash payments will be reduced before cash payments.

Termination by the Company Without Cause or by the Executive for Good Reason. (i) If the employment of the Executive is terminated by the Company without Cause or by the Executive for Good Reason, the Company will pay the Executive one and one-half times the sum of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount equal to the average annual Bonus paid to the Executive for the three most recently completed calendar years prior to termination of employment; provided, however, that if the Executive’s termination of employment occurs before the Bonus, if any, for the most recently completed calendar year is payable, then the averaging will be determined by reference to the three most recently completed calendar years before that calendar year. Such amount shall be paid in substantially equal annual installments not less frequently than twice per month over the eighteen twelve (1812) month period commencing as of the date of termination of employment, provided that the first payment shall be made sixty (60) days following termination of employment and shall include all payments accrued from the date of termination of employment to the date of the first payment; provided, however, if the Executive is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date of his termination of employment then, to the extent required to avoid a tax under Code Section 409A, payments which would otherwise have been made during the first six (6) months after termination of employment shall be withheld and paid to the Executive during the seventh month following the date of his termination of employment. Notwithstanding the foregoing, if the total payments to be paid to the Executive hereunder, along with any other payments to the Executive, would result in the Executive being subject to the excise tax imposed by Code Section 4999, the Company shall reduce the aggregate payments to the largest amount which can be paid to the Executive without triggering the excise tax, but only if and to the extent that such reduction would result in the Executive retaining larger aggregate after-tax payments. The determination of the excise tax and the aggregate after-tax payments to be received by the Executive will be made by the Company after consultation with its advisors and in material compliance with applicable law. For this purpose, the parties agree that the payments provided for in this Paragraph (i) are intended to be reasonable compensation for refraining from performing services after termination of employment (i.e, the Executive’s obligations pursuant to Sections 4, 5 and 6) to the maximum extent possible, and if necessary or desirable, the Company will retain a valuator or consultant to determine the amount constituting reasonable compensation. If payments are to be reduced, to the extent permissible under Code Section 4999, payments will be reduced in a manner that maximizes the after-tax economic benefit to the Executive and to the extent consistent with that objective, in the following order of precedence: (A) first, payments will be reduced in order of those with the highest ratio of value for purposes of the calculation of the parachute payment to projected actual taxable compensation to those with the lowest such ratio, (B) second, cash payments will be reduced before non-cash payments, and (C) third, payments to be made latest in time will be reduced first and if any payments are to first. Any reduction will be made at the same time, non-cash payments will be reduced before cash payments.in a manner that is intended to avoid a tax being incurred under Code Section 409A.