Common use of Termination by the Employer without Cause or by the Executive with Good Reason Clause in Contracts

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if the Employer terminates the Executive’s employment during the Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 million; (iii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed to the Executive within 10 days of the Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional amount that, on an after-tax basis, is equal to the cost of comparable coverage obtained by Executive.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if the Employer terminates the Executive’s employment during If the Employment Period other than for Cause or Disability pursuant to is terminated in accordance with Section 8(a4.01(b)(iii) or if Section 4.01(c)(i) of this Agreement, the Executive terminates his employment hereunder with Good Reason, will be entitled to receive (i) the Employer shall immediately grant (Salary that would have been payable to him during the extent not already granted) all equity awards described in Section 5(e); remainder of the term of this Agreement if his employment hereunder had continued, and (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion the product of (based upon x) the Severance Percentage (as defined below), multiplied by (y) the Executive's Actual Aggregate Compensation (as defined in Section 4.05(d) below) for the Employer's fiscal year most recently ended prior to the termination. For purposes of this Agreement, the "Severance Percentage" shall mean the percentage resulting from the following calculation: (x) the number of days during the period from January 1, 2006 through the Employment Termination Date that the Executive was employed during by the calendar year in Company, divided by (y) 730. The Executive also will be entitled to receive the amount of Salary, bonus and long-term incentive compensation which the Executive has earned through the Employment Termination Date of Termination occurs) as determined in good faith by the Committee. In addition, if the Executive would lose coverage under the group health plan sponsored or maintained by the Employer as a result of the average amount termination of the annual bonusesExecutive's employment and Executive elects to continue health coverage through a group health plan sponsored or maintained by the Employer under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), if any, that were earned by the Employer will reimburse the Executive for the two calendar years immediately preceding COBRA premiums for coverage for the year Executive and his dependents for the initial twelve months of coverage, except that the Employer's obligations in this sentence will expire upon the Executive's and his dependents' becoming eligible for comparable coverage under another employer's health benefits plan or policy. The cost of coverage under the Employer's group health plan will be payable solely by the Employer. Except to the extent otherwise permitted under Section 409A of the Code, the Salary, bonuses and long-term incentive compensation and the payments for the cost of group health plan coverage under COBRA shall be accumulated by the Employer and paid to the Executive on the first day of the seventh calendar month following the Employment Termination Date of Termination, (C) all Accrued Benefitsor, if anyearlier, the date of the Executive's death, and thereafter payments to which the Executive is otherwise entitled hereunder shall be made in equal monthly installments on the first day of each calendar month for the remainder of the period. If, at the Employment Termination Date, or at any time thereafter, the Salary, bonuses and long-term incentive compensation or payments for the cost of group health plan coverage under COBRA to which the Executive is entitled as of the Date of Termination, in each case at the time such payments under this Section 4.05(b) are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 million; (iii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards not required to be granted pursuant to clause deferred under Section 409A of the Code, then such amounts shall instead be paid in equal monthly installments on the first day of each calendar month; provided, that the first installment shall be paid on the later of (i) the first day of this Section 9(d)the calendar month immediately following the Employment Termination Date or (ii) the date which is fifteen (15) days following the Employment Termination Date. In addition, stock options, stock appreciation rights, any restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed grants which have been made to the Executive within 10 days upon the achievement of the Executive’s Date of Termination; LTI Performance Criteria, and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior any other restricted stock grants to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior any outstanding stock options granted to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plansExecutive, the Employer shall pay Executive an additional amount that, on an after-tax basis, is equal to the cost of comparable coverage obtained by Executivebecome fully vested.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if If the Employer terminates the Executive’s employment during the Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due due, and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 million; (iiiii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards, including without limitation those granted pursuant to Section 5(d)) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed to the Executive within 10 ten (10) days of the Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the Executive’s Date of Termination for the greater of twelve (A12) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional amount that, on an after-tax basis, is equal to the cost of comparable coverage obtained by Executive.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if the Employer terminates the Executive’s employment during the Employment Period for a reason other than for Cause or due to the Executive’s Disability pursuant to Section 8(a8(a)(ii)(A) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of TerminationAccrued Benefits, (B) a cash lump sum in an amount equal to a pro rata portion (based upon on the number of days during the applicable fiscal period prior to the Date of Termination) of the Annual Bonus the Executive was employed during would have earned absent such termination, with such payment to be made based on actual performance and at the calendar time bonus payments are made to executives of the Employer generally, (C) a lump sum equal to the Executive’s Target Annual Bonus for the year in which of termination, (D) continued Base Salary for 12 months following the Date of Termination occurs(the “Severance Period”) of payable in equal installments in accordance with the average amount of Employer’s normal payroll practices (the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any“Cash Severance Payment”), and (y) $1.8 million; (iiiE) (A1) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the any outstanding equity awards required to be granted pursuant to clause Sections 5(c)(i) shall continue to vest during the Severance Period and (i2) of this any outstanding equity awards granted pursuant to Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units 5(c)(i) during the 24 month period following the Merger or deferred stock awardsSection 5(c)(ii) shall immediately vest and, if applicable, become exercisable, in full on the Date of Termination (Bwithout regard to any time-based vesting conditions) all stock options, stock appreciation rights or other similar rights held by provided that any such awards subject to performance-based vesting conditions shall vest based on actual performance in the Executive shall remain exercisable for the remainder of their originally scheduled terms, applicable fiscal period and (C) all deferred compensation or other equity or equity-related awards will, payout to the extent applicable, be transferred or distributed to performance metrics are ultimately achieved; (ii) the Executive within 10 days of the Executive’s Date of TerminationContinued Coverage Payment; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the provided with executive outplacement with a provider of Executive’s Date choice, up to a maximum of Termination for $25,000. For the greater purposes of (A) 24 months or (B) this Agreement, a voluntary termination by the balance Executive upon the expiration of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior due to the Date delivery of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, a non-renewal notice by the Employer pursuant to Section 2 shall pay Executive an additional amount that, on an after-tax basis, is equal to be treated as a termination by the cost of comparable coverage obtained by ExecutiveEmployer without Cause.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if the Employer terminates the Executive’s employment during the Employment Period due to the Executive’s Disability pursuant to Section 8(a)(ii)(A) or for a reason other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant pay the Executive (A) the Accrued Benefits, (B) a pro rata portion (based on the number of days during the applicable fiscal period prior to the extent not already grantedDate of Termination) all of the Annual Bonus of Executive would have earned absent such termination, with such payment to be made based on actual performance and at the time bonus payments are made to executives of the Employer generally, (C) a lump sum equal to 1.5 times the Executive’s Target Annual Bonus for the year of termination, (D) continued Base Salary for 18 months following the Date of Termination (the “Severance Period”) payable in equal installments in accordance with the Employer’s normal payroll practices (the “Cash Severance Payment”), (E) (1) any outstanding equity awards described granted pursuant to Section 5(c)(i) shall continue to vest during the Severance Period and (2) any outstanding equity awards granted pursuant to Section 5(c)(i) prior to and during the 24-month period following the Merger, or the One-time Equity Awards granted pursuant to Section 5(c)(ii), shall immediately vest in Section 5(efull on the Date of Termination (without regard to any time-based or performance-based vesting conditions); provided, however, that the Effective Date Award shall vest as provided in the applicable award agreement; (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 million; (iii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed to the Executive within 10 days of the Executive’s Date of TerminationContinued Coverage Payment; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the provided with executive outplacement with a provider of Executive’s Date choice, up to a maximum of Termination for $25,000. For the greater purposes of (A) 24 months or (B) this Agreement, a voluntary termination by the balance Executive upon the expiration of the Employment Period in such medicaldue to delivery of a non-renewal notice by the Employer pursuant to Section 2 shall be treated as a termination by the Employer without Cause. If a termination under this Section occurs within three (3) years following the Executive’s relocation to Phoenix, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior Arizona pursuant to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plansSection 4, the Employer shall pay provide Executive an additional amount that, on an after-tax basis, is equal with a relocation package substantially similar to the cost of comparable coverage obtained by Executive.estimated costs in Exhibit A.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if If the Employer terminates the Executive’s employment during the Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary Compensation due through the end of the calendar quarter that includes the Executive’s Date of Termination, and (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 milliondue; (iiiii) (A) subject to the terms of the agreements covering the Options, all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive (including the Options) shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed to the Executive within 10 days of the Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional amount that, on an after-tax basis, is equal to the cost of comparable coverage obtained by Executive.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if the Employer terminates the Executive’s employment during the Employment Period for a reason other than for Cause or due to the Executive’s Disability pursuant to Section 8(a8(a)(ii)(A) or if the Executive terminates his employment hereunder with Good Reason, subject to the Executive’s compliance with Section 7, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of TerminationAccrued Benefits, (B) a cash lump sum in an amount equal to a pro rata portion (based upon on the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of applicable fiscal period prior to the Date of Termination) of the Annual Bonus the Executive would have earned absent such termination, with such payment to be made based on actual performance and at the time bonus payments are made to executives of the Employer generally, and (C) all Accrued Benefitsan amount equal to 1x the sum of the Executive’s annual Base Salary and Target Bonus for the year, if any, to which the Executive is entitled each determined as of the Date of Termination, in each case at which shall be paid over the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of 12 months following the Date of Termination, if any, and Termination (ythe “Severance Period”) $1.8 millionpayable in equal installments in accordance with the Employer’s normal payroll practices (the “Cash Severance Payment”); (iiiii) (Aany) all deferred compensation credited on the Executive’s behalf and all equity or equity-related unvested awards held by, or credited to, granted to the Executive (including, without limitation, under the equity awards required Incentive Plan shall continue to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by during the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, Severance Period to the extent applicable, be transferred or distributed to that such awards would have become vested had he remained employed through the Executive within 10 days end of the Executive’s Date of TerminationSeverance Period; and (iii) the Executive and his covered dependents shall be entitled to continued participation on additional payments, payable in equal installments in accordance with the same terms and conditions as applicable immediately prior Employer’s normal payroll practices, equal to the Executivetotal costs that would be incurred by the Executive to obtain and pay for continued coverage under the Employer’s Date health insurance plans during the Severance Period (the “Continued Coverage Payment”). For the purposes of Termination for this Agreement, a voluntary termination by the greater of (A) 24 months or (B) Executive upon the balance expiration of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior due to the Date delivery of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, a non-renewal notice by the Employer pursuant to Section 2 shall pay Executive an additional amount that, on an after-tax basis, is equal to be treated as a termination by the cost of comparable coverage obtained by ExecutiveEmployer without Cause.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if If the Employer terminates the Executive’s employment during the Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the higher of (1) the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of TerminationTermination and (2) $750,000, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (xi) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (yii) $1.8 millionmillion (D) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due; and (iiiii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, will be transferred or distributed to the Executive within 10 days of the Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional grossed up amount that, on an after-tax basis, such payment is equal equivalent to the cost of comparable coverage obtained by Executive.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if If the Employer terminates the Executive’s employment during the Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the higher of (1) the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of TerminationTermination and (2) $750,000, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (xi) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (yii) $1.8 millionmillion (D) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due; and (iiiii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, ,dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, will be transferred or distributed to the Executive within 10 days of the Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional grossed up amount that, on an after-tax basis, such payment is equal equivalent to the cost of comparable coverage obtained by Executive.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if If the Employer terminates the Executive’s employment during the Employment Period other than for Cause or Disability pursuant to Section 8(a) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall immediately grant (to the extent not already granted) all equity awards described in Section 5(e); (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date end of Terminationthe Employment Period, and (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 milliondue; (iiiii) (A) subject to the terms of the agreements covering the Options, all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive (including the Options) shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed to the Executive within 10 days of the Executive’s Date of Termination; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the Executive’s Date of Termination for the greater of (A) 24 months or (B) the balance of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior to the Date of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, the Employer shall pay Executive an additional amount that, on an after-tax basis, is equal to the cost of comparable coverage obtained by Executive.

Termination by the Employer without Cause or by the Executive with Good Reason. Subject to Section 9(e), if the Employer terminates the Executive’s employment during the Employment Period for a reason other than for Cause or due to the Executive’s Disability pursuant to Section 8(a8(a)(ii)(A) or if the Executive terminates his employment hereunder with Good Reason, (i) the Employer shall pay the Executive (A) the Accrued Benefits, (B) a pro rata portion (based on the number of days during the applicable fiscal period prior to the Date of Termination) of the Annual Bonus the Executive would have earned absent such termination, with such payment to be made based on actual performance and at the time bonus payments are made to executives of the Employer generally, (C) a lump sum equal to two times the Executive’s Target Annual Bonus for the year of termination, (D) continued Base Salary for 24 months following the Date of Termination (the “Severance Period”) payable in equal installments in accordance with the Employer’s normal payroll practices (the “Cash Severance Payment”), and (E) (1) any outstanding equity awards granted pursuant to Sections 5(c)(i) shall continue to vest during the Severance Period and (2) any outstanding equity awards granted pursuant to Section 5(c)(i) during the 24 month period following the Merger, or the One-time Equity Awards granted pursuant to Section 5(c)(ii), shall immediately grant (vest in full on the Date of Termination without regard to any time-based vesting conditions, provided that any such awards subject to performance-based vesting conditions shall vest based on actual performance in the applicable fiscal period and payout to the extent not already granted) all equity awards described performance metrics are ultimately achieved, with the exception of the Effective Date Award, which shall vest as provided in Section 5(e)the applicable award agreement; (ii) the Employer shall pay the Executive (A) the Executive’s Base Salary due through the Date of Termination, (B) a cash lump sum in an amount equal to a pro rata portion (based upon the number of days the Executive was employed during the calendar year in which the Date of Termination occurs) of the average amount of the annual bonuses, if any, that were earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, (C) all Accrued Benefits, if any, to which the Executive is entitled as of the Date of Termination, in each case at the time such payments are due and (D) a cash lump sum in an amount equal to the greater of (x) two times the sum of the Executive’s Base Salary and the average of the annual bonuses earned by the Executive for the two calendar years immediately preceding the year of the Date of Termination, if any, and (y) $1.8 million; (iii) (A) all deferred compensation credited on the Executive’s behalf and all equity or equity-related awards held by, or credited to, the Executive (including, without limitation, the equity awards required to be granted pursuant to clause (i) of this Section 9(d), stock options, stock appreciation rights, restricted stock awards, dividend equivalent rights, restricted stock units or deferred stock awards) shall immediately vest and, if applicable, become exercisable, (B) all stock options, stock appreciation rights or other similar rights held by the Executive shall remain exercisable for the remainder of their originally scheduled terms, and (C) all deferred compensation or other equity or equity-related awards will, to the extent applicable, be transferred or distributed to the Executive within 10 days of the Executive’s Date of TerminationContinued Coverage Payment; and (iii) the Executive and his covered dependents shall be entitled to continued participation on the same terms and conditions as applicable immediately prior to the provided with executive outplacement with a provider of Executive’s Date choice, up to a maximum of Termination for $25,000. For the greater purposes of (A) 24 months or (B) this Agreement, a voluntary termination by the balance Executive upon the expiration of the Employment Period in such medical, dental, hospitalization and life insurance coverages in which the Executive and his eligible dependents were participating immediately prior due to the Date delivery of Termination; provided that if such continued coverage is not permitted under the terms of such benefit plans, a non-renewal notice by the Employer pursuant to Section 2 shall pay Executive an additional amount that, on an after-tax basis, is equal to be treated as a termination by the cost of comparable coverage obtained by ExecutiveEmployer without Cause.