Common use of Termination with Good Reason or without Cause Clause in Contracts

Termination with Good Reason or without Cause. During the Term, the Executive may terminate his employment with the Company at any time with Good Reason, and the Company may terminate the Executive’s employment without Cause, upon 10 (ten) days’ written notice to the other party hereto. Subject to Section 4.6, the Executive shall have the right to continue to receive his Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 and 3.3 hereof, for the remainder of the Term; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with the Company, then the Company shall provide him with benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall be a nationally recognized United States public accounting firm, which may be the independent accounting firm used by the Company to audit its financial statements unless such accounting firm is serving as the accountant or auditor for the individual, entity or group effecting the Change in Control.

Termination with Good Reason or without Cause. During the Term, (1) the Executive may terminate his Executive’s employment with the Company at any time with Good ReasonReason (as defined below), and (2) the Company may terminate the Executive’s employment without Cause, upon 10 ten (ten10) days’ written notice to the other party heretothereto. Subject In either such case, provided the Executive has not breached and does not breach the provisions of Sections 5.1, 5.2, 5.3, 5.4, or 5.5 and the Executive has entered into and not revoked a general release of claims without additional post-termination restrictions included therein in form reasonably satisfactory to Section 4.6the Company so that it becomes effective within sixty (60) days after Executive’s termination of employment, the Executive shall have the right to continue to receive his for a period of 18 months from the Executive’s date of termination (i) Executive’s Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions Company’s payroll schedule, (ii) coverage in the Company’s group health plan under COBRA, if elected, at the subsidized employee rate, (iii) the payment or provision of Sections 3.1 Other Benefits, and 3.3 hereof, (iv) coverage under the term life insurance policy (or be reimbursed for the remainder of the Term; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with premiums therefor) and the Company, then ’s directors’ and officers’ liability indemnification and insurance coverage. If the Company shall provide him with severance benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (hereunder are considered “deferred compensation” subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and the period to consider and revoke the release spans two tax years, the severance will begin to be paid in the second tax year even if the release becomes effective in the earlier tax year. For purposes of this Agreement, “Good Reason” means (a) the assignment to the Executive of duties and responsibilities not commensurate with Executive’s position with the Company, (b) the failure of the Company to provide compensation and benefits to the Executive as required herein, (c) a reduction in the Executive’s Base Salary without Executive’s consent, or (d) the failure of the Company to adhere in any interest or penalties are incurred substantial manner to any of its other covenants herein, provided that any of the foregoing continues for a period of twenty (20) days after written notice thereof, specifying the nature thereof and requesting that it be cured, is given by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall No severance will be paid for a nationally recognized United States public accounting firm, which may be “Good Reason” termination unless Executive terminates employment within 60 days after the independent accounting firm used by first occurrence of the condition and the Company to audit its financial statements unless has not cured such accounting firm is serving as condition within 30 days after written notice thereof (which notice shall state that such condition constitutes Good Reason) from the accountant or auditor for the individual, entity or group effecting the Change in ControlExecutive.

Termination with Good Reason or without Cause. During the Term, (1) the Executive may terminate his Executive’s employment with the Company at any time with Good ReasonReason (as defined below), and (2) the Company may terminate the Executive’s employment without Cause, upon 10 ten (ten10) days’ written notice to the other party heretothereto. Subject In either such case, provided the Executive has not breached and does not breach the provisions of Sections 5.1, 5.2, 5.3, 5.4, or 5.5 and the Executive has entered into and not revoked a general release of claims without additional post-termination restrictions included therein in form reasonably satisfactory to Section 4.6the Company so that it becomes effective within sixty (60) days after Executive’s termination of employment, the Executive shall have the right to continue to receive his for a period of 12 months from the Executive’s date of termination (i) Executive’s Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions Company’s payroll schedule, (ii) coverage in the Company’s group health plan under COBRA, if elected, at the subsidized employee rate, (iii) the payment or provision of Sections 3.1 Other Benefits, and 3.3 hereof, (iv) coverage under the term life insurance policy (or be reimbursed for the remainder of the Term; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with premiums therefor) and the Company, then ’s directors’ and officers’ liability indemnification and insurance coverage. If the Company shall provide him with severance benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (hereunder are considered “deferred compensation” subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and the period to consider and revoke the release spans two tax years, the severance will begin to be paid in the second tax year even if the release becomes effective in the earlier tax year. For purposes of this Agreement, “Good Reason” means (a) the assignment to the Executive of duties and responsibilities not commensurate with Executive’s position with the Company, (b) the failure of the Company to provide compensation and benefits to the Executive as required herein, (c) a reduction in the Executive’s Base Salary without Executive’s consent, or (d) the failure of the Company to adhere in any interest or penalties are incurred substantial manner to any of its other covenants herein, provided that any of the foregoing continues for a period of twenty (20) days after written notice thereof, specifying the nature thereof and requesting that it be cured, is given by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall No severance will be paid for a nationally recognized United States public accounting firm, which may be “Good Reason” termination unless Executive terminates employment within 60 days after the independent accounting firm used by first occurrence of the condition and the Company to audit its financial statements unless has not cured such accounting firm is serving as condition within 30 days after written notice thereof (which notice shall state that such condition constitutes Good Reason) from the accountant or auditor for the individual, entity or group effecting the Change in ControlExecutive.

Termination with Good Reason or without Cause. During the Term, the Executive may terminate his employment with the Company at any time with Good Reason, and the Company may terminate the Executive’s employment without Cause, upon 10 (ten) days’ written notice to the other party hereto. Subject to Section 4.6, the Executive shall have the right to continue to receive his Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 and 3.3 hereof, for the greater of (x) the remainder of the TermTerm and (y) twenty-four (24) months; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with the Company, then the Company shall provide him with benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve twenty-four (24) months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall be a nationally recognized United States public accounting firm, which may be the independent accounting firm used by the Company to audit its financial statements unless such accounting firm is serving as the accountant or auditor for the individual, entity or group effecting the Change in Control.

Termination with Good Reason or without Cause. During If during the Term --------------------------------------------- the Executive resigns for Good Reason (defined below) or his employment or services are terminated without Cause (as defined above): (i) The Company will pay Executive (a) his salary and unused vacation pay through the last day of his employment with the Company, (b) his unpaid reimbursable business expenses incurred by him through the last day of his employment with the Company, and (c) any earned but unpaid annual bonus compensation for the prior contract year, and the bonus he would have received had he remained in the employ of the Company for the contract year then in progress prorated. (ii) The Company will pay Executive the greater of (a) his Annual Salary at the time of such termination for one (1) year, or (b) the Annual Salary the Executive would have been paid had his employment not been terminated without Cause or for Good Reason. (iii) For the remainder of the Term, the Company shall continue benefits, at its expense, to Executive may terminate and his immediate family at least equal to those which would have been provided to him and them in accordance with the plans, programs, practices and policies of the Company if his employment had not ended or, if more favorable to Executive, as in effect generally at any time thereafter with respect to other executives of the Company and their families, provided, however, that if Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits of the Company shall be secondary to those provided under such other plan during such applicable period of eligibility. (iv) All stock options of the Executive shall immediately vest and be exercisable for up to one (1) year following the date of the termination of the Executive's employment with the Company. (v) The Company will provide Executive with (a) first-class outplacement services for up to six months with an outplacement firm mutually agreed to by the Company and Executive; (b) a favorable reference; and (c) an agreed-upon designated contact for references. In addition, at Executive's option, and taking into account the Company's needs as a public company, an agreed upon statement will be issued to employees and an agreed-upon press release will be issued to the media concerning the departure of Executive. (vi) For the first year after the termination of his employment, Executive shall not be required to seek other employment or take other action in order to mitigate his damages or to be entitled to the benefits and payments above. During the first year after the termination of his employment, the Company shall not be entitled to set off against such benefits and payments due or any other amounts of money payable to Executive any amounts he earns in other employment or engagement after the termination of his employment with the Company at without Cause or for Good Reason or any time with Good Reason, and amounts that he might or could have earned in other employment had he sought such other employment. After the Company may terminate the Executive’s employment without Cause, upon 10 (ten) days’ written notice to the other party hereto. Subject to Section 4.6, the Executive shall have the right to continue to receive his Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 and 3.3 hereof, for the remainder of the Term; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to first year following the termination of his employment, Executive shall be required to seek other employment or take other action in order to mitigate his damages to be entitled to the Executive’s benefits and payments after such first year. After the first year following the termination of his employment, Company may set off against such benefits and payments due or any other amounts of money payable to Executive amounts he earns in other employment or engagement after the first year following the termination of his employment with the CompanyCompany without Cause or for Good Reason or any amounts that he might or could have earned in other employment had he not failed to seek such other employment. As used herein, then Good Reason shall mean only: (i) withdrawal by the Company shall provide him with benefits substantially similar to those which he would be entitled to as from Executive of any substantial part of his duties then being performed, or responsibility or authority then being carried, by him, or a participant material change in such benefit plans, programs, practices or policies; provided further, that (subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution 's reporting lines; (ii) assignment by the Company to Executive of substantial additional duties or for responsibilities which are inconsistent with the benefit duties or responsibilities then being carried by Executive; (iii) material reduction in the level of Executive's responsibility, authority, autonomy, title, compensation, executive perquisites, or other employee benefits; (iv) failure to keep Executive in office as President and COO and/or on the Board of Directors of the Company; (v) the Company's material breach of Executive's employment agreement (or any other agreement between Executive (whether pursuant to and the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to Company); and the excise tax imposed by Section 4999 failure of the Internal Revenue Code Company to cure such breach within thirty (30) days of 1986, as amended notice thereof; (vi) material fraud on the “Code”), or any interest or penalties are incurred by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment part of the Gross-Up Payment Company; or (as defined belowvii) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment discontinuance of the Gross-Up Payment (as defined below) by active operation of business of the Company, are hereinafter referred to as or insolvency of the “Excise Tax”)Company, then or the filing by or against the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) of a petition in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid bankruptcy or for reorganization or restructuring pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall be a nationally recognized United States public accounting firm, which may be the independent accounting firm used by the Company to audit its financial statements unless such accounting firm is serving as the accountant applicable insolvency or auditor for the individual, entity or group effecting the Change in Controlbankruptcy law.

Termination with Good Reason or without Cause. During the Term, the Executive may terminate his employment with the Company at any time with Good Reason, and the Company may terminate the Executive’s 's employment without Cause, upon 10 (ten) days’ ' written notice to the other party hereto. Subject to Section 4.6, the Executive shall shall, subject to the execution, without revocation, of a valid release agreement reasonably acceptable to the Company, have the right to continue to receive his Base Salary (the “"Termination Payments”") and to continue to be a participant in the Company’s 's Executive Health and Life Benefit Plan (the “"Termination Benefits”"), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 and 3.3 hereof, for the remainder of the Term; provided, that in the event that the Executive’s 's participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s 's employment with the Company, then the Company shall provide him with benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (subject to Section 4.64.6 and the execution without revocation of a release reasonably acceptable to the Company) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s 's employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s 's employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s 's employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “"Excise Tax”"), then the Company will pay to the Executive an additional payment (the “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall be a nationally recognized United States public accounting firm, which may be the independent accounting firm used by the Company to audit its financial statements unless such accounting firm is serving as the accountant or auditor for the individual, entity or group effecting the Change in Control.

Termination with Good Reason or without Cause. During the Term, (a) the Executive may terminate his Executive’s employment with the Company at any time with Good ReasonReason (as defined below), and (b) the Company may terminate the Executive’s employment without Cause, upon 10 ten (ten10) days’ written notice to the other party heretoExecutive. Subject In either such case, provided the Executive has not breached and does not breach the provisions of Sections 5.1, 5.2, 5.3, 5.4, 5.5, or 5.8 and the Executive has entered into and not revoked a general release of claims without additional post-termination restrictions included therein in form reasonably satisfactory to Section 4.6the Company so that it becomes effective within sixty (60) days after the Executive’s termination of employment, the Executive shall have the right to continue to receive his receive, (i) for a period of twenty-four (24) months immediately following the Executive’s date of termination (A) the Executive’s Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 Company’s payroll schedule, and 3.3 hereof(B) coverage under the Company’s group health plan under COBRA, if elected, paid for by the Company (or reimbursed for the remainder premiums therefor), (ii) the payment or provision of Other Benefits, and (iii) coverage under the Term; provided, that in term life insurance policy (or be reimbursed for the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with premiums therefor) and the Company, then ’s directors’ and officers’ liability indemnification and insurance coverage. If the Company shall provide him with severance benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (hereunder are considered “deferred compensation” subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and the period to consider and revoke the release spans two tax years, the severance will begin to be paid in the second tax year even if the release becomes effective in the earlier tax year, and the first such payment shall include all payments that would have otherwise become payable prior to such first payment date if not for such restriction. For purposes of this Agreement, “Good Reason” means (1) the assignment to the Executive of duties and responsibilities not commensurate with the Executive’s position with the Company, (2) the failure of the Company to provide compensation and benefits to the Executive as required herein, (3) a reduction in the Executive’s Base Salary without the Executive’s consent, (4) failure of the Company to comply with obligations of good faith and fair dealing in its performance of this Agreement, or (5) the failure of the Company to adhere in any interest or penalties are incurred substantial manner to any of its other covenants herein; provided that any of the foregoing continues for a period of twenty (20) days after written notice thereof, specifying the nature thereof and requesting that it be cured, is given by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall No severance will be paid for a nationally recognized United States public accounting firm, which may be “Good Reason” termination unless the independent accounting firm used by Executive terminates employment within sixty (60) days after the first occurrence of the condition and the Company to audit its financial statements unless has not cured such accounting firm is serving as condition within thirty (30) days after written notice thereof (which notice shall state that such condition constitutes Good Reason) from the accountant or auditor for the individual, entity or group effecting the Change in ControlExecutive.

Termination with Good Reason or without Cause. During the Term, the Executive may terminate his employment with the Company at any time with Good ReasonReason upon thirty days advance written notice to the Company, and the Company may at any time terminate the Executive’s 's employment without Cause, upon 10 (ten) days’ written notice to the other party hereto. Subject to Section 4.6, the Executive shall shall, subject to the execution, without revocation, of a valid release agreement reasonably acceptable to the Company, have the right to continue to receive his Base Salary (the “"Termination Payments”") and to continue to be a participant in the Company’s 's Executive Health and Life Benefit Plan (the “"Termination Benefits”"), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 and 3.3 hereof, for the remainder of the Term; providedPROVIDED, that in the event that the Executive’s 's participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s 's employment with the Company, then the Company shall provide him with benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided furtherPROVIDED FURTHER, that (subject to Section 4.64.6 and the execution without revocation of a release reasonably acceptable to the Company) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s 's employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s 's employment terminated, and pro rated through the date of termination; provided furtherPROVIDED FURTHER, that if the Executive’s 's employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “"Excise Tax”"), then the Company will pay to the Executive an additional payment (the “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall be a nationally recognized United States public accounting firm, which may be the independent accounting firm used by the Company to audit its financial statements unless such accounting firm is serving as the accountant or auditor for the individual, entity or group effecting the Change in Control.

Termination with Good Reason or without Cause. During the Term, (a) the Executive may terminate his Executive’s employment with the Company at any time with Good ReasonReason (as defined below), and (b) the Company may terminate the Executive’s employment without Cause, upon 10 ten (ten10) days’ written notice to the other party heretoExecutive. Subject In either such case, provided the Executive has not breached and does not breach the provisions of Sections 5.1, 5.2, 5.3, 5.4, 5.5, or 5.8 and the Executive has entered into and not revoked a general release of claims without additional post-termination restrictions included therein in form reasonably satisfactory to Section 4.6the Company so that it becomes effective within sixty (60) days after the Executive’s termination of employment, the Executive shall have the right to continue to receive his receive, (i) for a period of twenty-four (24) months immediately following the Executive’s date of termination (A) the Executive’s Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions of Sections 3.1 Company’s payroll schedule, and 3.3 hereof(B) coverage under the Company’s group health plan under COBRA, if elected, paid for by the Company (or reimbursed for the remainder premiums therefor), (ii) the payment or provision of Other Benefits, and (iii) coverage under the Term; provided, that in term life insurance policy (or be reimbursed for the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with premiums therefor) and the Company, then ’s directors’ and officers’ liability indemnification and insurance coverage. If the Company shall provide him with severance benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (hereunder are considered “deferred compensation” subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and the period to consider and revoke the release spans two tax years, the severance will begin to be paid in the second tax year even if the release becomes effective in the earlier tax year, and the first such payment shall include all payments that would have otherwise become payable prior to such first payment date if not for such restriction. For purposes of this Agreement, “Good Reason” means (1) the assignment to the Executive of duties and responsibilities not commensurate with the Executive’s position with the Company, (2) the failure of the Company to provide compensation and benefits to the Executive as required herein, (3) a reduction in the Executive’s Base Salary without the Executive’s consent, or (4) the failure of the Company to adhere in any interest or penalties are incurred substantial manner to any of its other covenants herein; provided that any of the foregoing continues for a period of twenty (20) days after written notice thereof, specifying the nature thereof and requesting that it be cured, is given by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall No severance will be paid for a nationally recognized United States public accounting firm, which may be “Good Reason” termination unless the independent accounting firm used by Executive terminates employment within sixty (60) days after the first occurrence of the condition and the Company to audit its financial statements unless has not cured such accounting firm is serving as condition within thirty (30) days after written notice thereof (which notice shall state that such condition constitutes Good Reason) from the accountant or auditor for the individual, entity or group effecting the Change in ControlExecutive.

Termination with Good Reason or without Cause. During the Term, (1) the Executive may terminate his the Executive’s employment with the Company at any time with Good ReasonReason (as defined below), and (2) the Company may terminate the Executive’s employment without Cause, upon 10 ten (ten10) days’ written notice to the other party heretothereto. Subject In either such case, provided the Executive has not breached and does not breach the provisions of Sections 5.1, 5.2, 5.3, 5.4, or 5.5 and the Executive has entered into and not revoked a general release of claims without additional post-termination restrictions included therein in form reasonably satisfactory to Section 4.6the Company so that it becomes effective within sixty (60) days after Executive’s termination of employment, the Executive shall have the right to continue to receive his for a period of 12 months from the Executive’s date of termination (i) Executive’s Base Salary (the “Termination Payments”) and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable in accordance with the provisions Company’s payroll schedule, (ii) coverage in the Company’s group health plan under COBRA, if elected, paid for by the Company (or be reimbursed for premiums therefor), (iii) the payment or provision of Sections 3.1 Other Benefits, and 3.3 hereof, (iv) coverage under the term life insurance policy (or be reimbursed for the remainder of the Term; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or policies referred to in Section 3.3 is barred by the terms of such plans, programs, practices or policies due to the termination of the Executive’s employment with premiums therefor) and the Company, then ’s directors’ and officers’ liability indemnification and insurance coverage. If the Company shall provide him with severance benefits substantially similar to those which he would be entitled to as a participant in such benefit plans, programs, practices or policies; provided further, that (hereunder are considered “deferred compensation” subject to Section 4.6) the Executive shall receive such Base Salary and group health benefits for a minimum of twelve months from the effective date of such notice. In the event the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution by the Company to or for the benefit of the Executive (whether pursuant to the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) and the period to consider and revoke the release spans two tax years, the severance will begin to be paid in the second tax year even if the release becomes effective in the earlier tax year. For purposes of this Agreement, “Good Reason” means (a) the assignment to the Executive of duties and responsibilities not commensurate with Executive’s position with the Company, (b) the failure of the Company to provide compensation and benefits to the Executive as required herein, (c) a reduction in the Executive’s Base Salary without Executive’s consent, or (d) the failure of the Company to adhere in any interest or penalties are incurred substantial manner to any of its other covenants herein, provided that any of the foregoing continues for a period of twenty (20) days after written notice thereof, specifying the nature thereof and requesting that it be cured, is given by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment of the Gross-Up Payment (as defined below) by the Company, are hereinafter referred to as the “Excise Tax”), then the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall No severance will be paid for a nationally recognized United States public accounting firm, which may be “Good Reason” termination unless Executive terminates employment within 60 days after the independent accounting firm used by first occurrence of the condition and the Company to audit its financial statements unless has not cured such accounting firm is serving as condition within 30 days after written notice thereof (which notice shall state that such condition constitutes Good Reason) from the accountant or auditor for the individual, entity or group effecting the Change in ControlExecutive.

Termination with Good Reason or without Cause. During If during the Term, Term the Executive may terminate resigns for Good Reason (defined below) or his employment or services are terminated without Cause (as defined above): (i) The Company will pay Executive (a) his salary and unused vacation pay through the last day of his employment with the Company at Company, (b) his unpaid reimbursable business expenses incurred by him through the last day of his employment with the Company, (c) his Annual Salary for the three-year time period he would have received it had he received the proper notice under Section 2 of this Agreement (the “Unexpired Term”), and (d) any time with Good Reasonearned but unpaid annual bonus compensation for the prior contract year, and the bonuses he would have received had he remained in the employ of the Company may terminate for the Executive’s employment without Cause, upon 10 Unexpired Term. (tenii) days’ written notice to For the other party hereto. Subject to Section 4.6Unexpired Term, the Company shall (x) continue benefits, at its expense, to Executive shall and his immediate family at least equal to those which would have the right been provided to continue to receive his Base Salary (the “Termination Payments”) him and to continue to be a participant in the Company’s Executive Health and Life Benefit Plan (the “Termination Benefits”), as in effect on the date of such notice, payable them in accordance with the provisions of Sections 3.1 and 3.3 hereof, for the remainder of the Term; provided, that in the event that the Executive’s participation in any benefit plans, programs, practices or and policies referred of the Company if his employment had not ended or, if more favorable to Executive, as in effect generally at any time thereafter with respect to other executives of the Company and their families, and (y) continue to reimburse Executive for the expenses and provide him with the benefits set forth in Section 3.3 4(a) through (e) of this Agreement, provided, however, that if Executive becomes reemployed with another employer and is barred by eligible to receive medical or other welfare benefits under another employer provided plan, the terms medical and other welfare benefits of the Company shall be secondary to those provided under such plans, programs, practices or policies due other plan during such applicable period of eligibility. (iii) Any and all unvested stock options of the Executive shall immediately vest and be exercisable for up to five (5) years following the date of the termination of the Executive’s employment with the Company. (iv) The Company will provide Executive with (a) first-class executive outplacement services for up to six months with an outplacement firm mutually agreed to by the Company and Executive; (b) a favorable reference; and (c) an agreed-upon designated contact for references. In addition, then at Executive’s option, and taking into account the Company’s needs as a public company, an agreed upon statement will be issued to employees and an agreed-upon press release will be issued to the media concerning the departure of Executive. (v) During the first two (2) years of the Unexpired Term Executive shall not be required to seek other employment or take other action in order to mitigate his damages or to be entitled to the any of the payments (including Annual Salary and bonuses), benefits, expenses, perquisites, and stock options above. During the first two (2) years of the Unexpired Term, the Company shall provide him with benefits substantially similar to those which he would not be entitled to as a participant set off against any such payments benefits, expenses, perquisites, and stock options due or any other amounts of money payable to Executive any amounts he earns in other employment or engagement after the termination of his employment with the Company without Cause or for Good Reason or any amounts that he might or could have earned in other employment or engagement had he sought such benefit plansother employment or engagement. After the first two (2) years of the Unexpired Term, programsExecutive shall (unless he is disabled) be required to seek other employment in order to mitigate his damages to be entitled to the benefits, practices or policies; provided furtherpayments, expenses, and perquisites for the third year of the Unexpired Term, provided, however, that (subject to Section 4.6) the Executive shall receive still be entitled to his stock options whether or not he mitigates his damages. After the first two (2) years following the termination of his employment, the Company may set off against such Base Salary benefits and group health benefits payments due or other amounts of money payable to Executive (but not his stock options) amounts he earns in other employment or engagement after the first two (2) years following the termination of his employment with the Company without Cause or for Good Reason or any amounts that he reasonably could have earned in other employment had he not failed to seek such other employment for reasons other than his disability. As used herein, Good Reason shall mean only: (i) withdrawal by the Company from Executive of any substantial part of his duties then being performed, or responsibility or authority then being carried, by him, or a minimum of twelve months from the effective date of such notice. In the event material change in the Executive’s employment terminates pursuant to this Section 4.4, he shall be entitled to receive a pro rata amount of his annual Incentive Bonus in accordance with the terms of the Plan, determined at the end of the fiscal year in which the Executive’s employment terminated, and pro rated through the date of termination; provided further, that if the Executive’s employment is terminated pursuant to this Section 4.4 after a Change in Control has occurred, in the event that any payment or distribution reporting lines; (ii) assignment by the Company to Executive of substantial additional duties or for responsibilities which are inconsistent with the benefit duties or responsibilities then being carried by Executive; (iii) material reduction in the level of Executive’s responsibility, authority, autonomy, title, compensation, executive perquisites, or other employee benefits; (iv) failure to keep Executive in office as Chairman and Chief Executive Officer and/or on the Board; (v) the Company’s material breach of Executive’s employment agreement (or any other agreement between Executive and the Company); and the failure of the Executive Company to cure such breach within thirty (whether pursuant to 30) days of notice thereof; (vi) material fraud on the terms of this Employment Agreement or otherwise) (a “Payment”) would be subject to the excise tax imposed by Section 4999 part of the Internal Revenue Code of 1986, as amended Company; or (the “Code”), or any interest or penalties are incurred by the Executive due to the miscalculation by an independent auditor with respect to such excise tax or untimely payment vii) discontinuance of the Gross-Up Payment (as defined below) by the Company with respect to such excise tax (such excise tax, together with any interest or penalties thereon incurred by the Executive due to miscalculation by the independent auditor or untimely payment active operation of the Gross-Up Payment (as defined below) by business of the Company, are hereinafter referred to as or insolvency of the “Excise Tax”)Company, then or the filing by or against the Company will pay to the Executive an additional payment (the “Gross-Up Payment”) of a petition in an amount such that after payment by the Executive of all taxes, including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The determination of amounts required to be paid bankruptcy or for reorganization or restructuring pursuant to the preceding proviso shall be made by an independent auditor selected and paid by the Company. Such independent auditor shall be a nationally recognized United States public accounting firm, which may be the independent accounting firm used by the Company to audit its financial statements unless such accounting firm is serving as the accountant applicable insolvency or auditor for the individual, entity or group effecting the Change in Controlbankruptcy law.