Common use of TERMINATION OTHER THAN FOR CAUSE OR POOR PERFORMANCE Clause in Contracts

TERMINATION OTHER THAN FOR CAUSE OR POOR PERFORMANCE. (i) Except as provided in Section 5(e)(ii) below, if during the term of this Agreement, Officer's employment shall be terminated by Employer other than for Cause or Poor Performance, then Officer shall be entitled to: (1) payment of his base salary through his last day of employment, but no payment on account of any further incentive compensation hereunder, and (2) within 30 days after such last day, a single payment in an amount equal to an amount in cash equal to two times the guaranteed minimum annual compensation as defined in Section 4(c); provided, however, if such termination shall occur within two (2) years after a change in control, as declared by the Board of Directors, and during the term of this Agreement, then such payment shall be in an amount equal to an amount in cash equal to two (2) times Officer's total compensation (base salary plus bonus) for the Fiscal Year proceeding such termination, and (3) for a period of one year following such last day, the benefits specified in the last sentence of Section 4(e) hereof. (ii) Not withstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by Employer or any other person or entity to or for the benefit of Officer (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with Employer or a change in ownership or effective control of Employer or a substantial portion of its assets (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the Payments shall include gross-up for any excise taxes due under IRC 280G or similar "golden parachute" provisions plus any excise, income, or payroll taxes owed on the payment on the excise payment amount. (iii) In order to receive the amounts provided by Sections 5(d) or 5(e), other than Base Salary through the last day of employment, Officer agrees that for a period of one year after termination of employment either for Poor Performance or other than for Cause, Officer shall not engage in any business, whether as an employee, consultant, partner, principal, agent, representative or stockholder (other than as a stockholder of less than 1% equity interest) or in any other corporate or representative capacity with any other business whether in corporate, proprietorship, or partnership form or otherwise, where such business is engaged in any activity which competes with the business of Employer or its subsidiaries or affiliates, as conducted on the date Officer's employment terminated or which will compete with any proposed business activity of Employer or its subsidiaries or affiliates, in the planning stage on such date. If the foregoing agreement is determined invalid or unenforceable by a Court in an interpretation of this Agreement, then Officer agrees that he shall return the amounts received pursuant to Sections 5(d) and 5(e), other than the Base Salary through the last day of employment.

TERMINATION OTHER THAN FOR CAUSE OR POOR PERFORMANCE. (i) Except as provided in Section 5(e)(ii) below, if during the term of this Agreement, Officer's ’s employment shall be terminated by Employer other than for Cause or Poor Performance, then Officer shall be entitled to: (1) payment of his base salary through his last day of employment, but no payment on account of any further incentive compensation hereunder, and (2) within 30 days after such last day, a single payment in an amount equal to an amount in cash equal to two times the guaranteed minimum annual compensation as defined in Section 4(c); provided, however, if such termination shall occur within two (2) years after a change in control, as declared by the Board of Directors, and during the term of this Agreement, then such payment shall be in an amount equal to an amount in cash equal to two (2) times Officer's ’s total compensation (base salary plus bonus) for the Fiscal Year proceeding such termination, and (3) for a period of one year following such last day, the benefits specified in the last sentence of Section 4(e) hereof. (ii) Not withstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by Employer or any other person or entity to or for the benefit of Officer (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "“Code"”)), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with Employer or a change in ownership or effective control of Employer or a substantial portion of its assets (a "“Payment"”), would be subject to the excise tax imposed by Section 4999 of the Code (the "“Excise Tax"”), the Payments shall include gross-up for any excise taxes due under IRC 280G or similar "“golden parachute" ” provisions plus any excise, income, or payroll taxes owed on the payment on the excise payment amount. (iii) In order to receive the amounts provided by Sections 5(d) or 5(e), other than Base Salary through the last day of employment, Officer agrees that for a period of one year after termination of employment either for Poor Performance or other than for Cause, Officer shall not engage in any business, whether as an employee, consultant, partner, principal, agent, representative or stockholder (other than as a stockholder of less than 1% equity interest) or in any other corporate or representative capacity with any other business whether in corporate, proprietorship, or partnership form or otherwise, where such business is engaged in any activity which competes with the business of Employer or its subsidiaries or affiliates, as conducted on the date Officer's ’s employment terminated or which will compete with any proposed business activity of Employer or its subsidiaries or affiliates, in the planning stage on such date. If the foregoing agreement is determined invalid or unenforceable by a Court in an interpretation of this Agreement, then Officer agrees that he shall return the amounts received pursuant to Sections 5(d) and 5(e), other than the Base Salary through the last day of employment.

TERMINATION OTHER THAN FOR CAUSE OR POOR PERFORMANCE. (i) Except as provided in Section 5(e)(ii) below, if during the term of this Agreement, Officer's employment shall be terminated by Employer other than for Cause or Poor Performance, then Officer shall be entitled to: (1) payment of his base salary through his last day of employment, but no payment on account of any further incentive compensation hereunder, and (2) within 30 days after such last day, a single payment in an amount equal to an amount in cash equal to two times the guaranteed minimum annual compensation as defined in Section 4(c); provided, however, if such termination shall occur within two (2) years after a change in control, as declared by the Board of Directors, and during the term of this Agreement, then such payment shall be in an amount equal to an amount in cash equal to two (2) times Officer's total compensation (base salary plus bonus) for the Fiscal Year proceeding such termination, and (3) for a period of one year following such last day, the benefits specified in the last sentence of Section 4(e) hereof. (ii) Not withstanding anything in this Agreement to the contrary, in the event it shall be determined that any payment or distribution by Employer or any other person or entity to or for the benefit of Officer (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")), whether be paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with Employer or a change in ownership or effective control of Employer or a substantial portion of its assets (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), the Payments shall include gross-up for any excise taxes due under IRC be reduced (but not below zero) to the extent necessary 8 so that no Excise Tax would be imposed. If the application of the preceding sentence should require a reduction in Payments or other parachute payment" (within the meaning of Section 280G of the Code), unless Officer shall have designated otherwise, such reduction shall be implemented, first, by reducing any non-cash benefits (other than stock options) to the extent necessary, second, by reducing any cash benefits to the extent necessary and, third, by reducing any stock options to the extent necessary. In each case, the reductions shall be made starting with the payment or similar "golden parachute" provisions plus any excise, income, or payroll taxes owed benefit to be made on the payment latest date following the Termination Date and reducing payments or benefits in reverse chronological order therefrom. All determinations concerning the application of this paragraph shall be made by a nationally recognized firm of independent accountants, selected by Officer and satisfactory to Employer, whose determination shall be conclusive and binding on the excise payment amountall parties. The fees and expenses of such accountants shall be borne by Employer. (iii) In order to receive the amounts provided by Sections 5(d) or 5(e), other than Base Salary through the last day of employment, Officer agrees that for a period of one year after termination of employment either for Poor Performance or other than for Cause, Officer shall not engage in any business, whether as an employee, consultant, partner, principal, agent, representative or stockholder (other than as a stockholder of less than 1% equity interest) or in any other corporate or representative capacity with any other business whether in corporate, proprietorship, or partnership form or otherwise, where such business is engaged in any activity which competes with the business of Employer or its subsidiaries or affiliates, as conducted on the date Officer's employment terminated or which will compete with any proposed business activity of Employer or its subsidiaries or affiliates, in the planning stage on such date. If the foregoing agreement is determined invalid or unenforceable by a Court in an interpretation of this Agreement, then Officer agrees that he shall return the amounts received pursuant to Sections 5(d) and 5(e), other than the Base Salary through the last day of employment.