Common use of Termination Without Cause; Constructive Termination Clause in Contracts

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s payroll practices until the first anniversary of the date of termination, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the bonus set forth in Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achieved, and (iii) until the first anniversary of the date of termination, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-time executive employees; further provided that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such continuation of compensation and benefits shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, and the commencement of the payment of such sums by Employer shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to Employer.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensationbasic compensation hereunder, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 12 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of within 30 days Employee worked in the year of termination and denominator a bonus in an amount that shall be the lesser of which is 365) of the Employee prior year bonus set forth in paid pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer), or 50% of of Employee’s Annual Incentive Plan are achievedannual base compensation, and (iii) until the first anniversary of the date of terminationduring such 12-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees. If the Employee is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) at the time the Employment Period expires and payments under this Section 4(d) are not a separation pay arrangement within the meaning of Prop. Treasury Reg. 1.409A-time executive employees; further provided l(a)(9) or any successor Treasury Regulations, the payments under Section 4(d)(i) shall be paid for a period of 12 consecutive months commencing with the seventh consecutive month immediately following the month in which the Employment Period ends. Provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing employee stock purchase plans or any other retirement plans. Employee shall have the option to receive the present value of the benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within 30 days of termination and Employer shall make such lump sum payment within 30 days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such continuation of compensation and benefits shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, Employers and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all such claims in form and substance mutually satisfactory to EmployerEmployers and Employee.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensationbasic compensation hereunder, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 12 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of within 30 days Employee worked in the year of termination and denominator a bonus in an amount that shall be 75% of which is 365) of the bonus set forth in Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in EmployerEmployee’s Annual Incentive Plan are achievedannual base compensation, and (iii) until the first anniversary of the date of terminationduring such 12-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-Employers’ employees. If the Employee is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i) at the time executive employees; further provided the Employment Period expires and payments under this Section 4(d) are not a separation pay arrangement within the meaning of Prop. Treasury Reg. 1.409A-1(a)(9) or any successor Treasury Regulations, the payments under Section 4(d)(i) shall be paid for a period of twelve consecutive months commencing with the seventh consecutive month immediately following the month in which the Employment Period ends. Provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing employee stock purchase plans or any other retirement plans. Employee shall have the option to receive the present value of the benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within thirty (30) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such continuation of compensation and benefits shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, Employers and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all such claims in form and substance mutually satisfactory to EmployerEmployers and Employee.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensationbasic compensation hereunder, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 12 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the his bonus set forth in pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achievedEmployee is terminated, and (iii) until the first anniversary of the date of terminationduring such 12-month period, to continue to receive the medical and dental benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees, (iv) to any amounts that might become due under Section 4(e), and (v) during such 12-time executive employeesmonth period, to a monthly automobile allowance as contemplated by Section 5 below; further provided provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. Employee shall have the option to receive the present value of the benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such continuation of compensation compensation, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the such 12-month period in which he is entitled to the compensation such compensation, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s Employers’ obligations for such compensation compensation, benefits and benefits monthly automobile allowance shall be reduced by the amount Employee receives from his new employer for compensation compensation, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, Employers and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to EmployerEmployers.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 12 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the his bonus set forth in pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achievedEmployee is terminated, and (iii) until the first anniversary of the date of terminationduring such 12-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees, and (iv) during such 12-time executive employeesmonth period, to a monthly automobile allowance as contemplated by Section 5 below; further provided provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. Employee shall have the option to receive the present value of the compensation, bonus and benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such continuation of compensation compensation, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the such 12-month period in which he is entitled to the compensation such compensation, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s Employers’ obligations for such compensation bonus, benefits and benefits monthly automobile allowance shall be reduced by the amount Employee receives from his new employer for compensation bonus, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with EmployerEmployers, and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to EmployerEmployers.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensationbasic compensation hereunder, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 12 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the his bonus set forth in pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achievedEmployee is terminated, and (iii) until the first anniversary of the date of terminationduring such 12-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees, and (iv) during such 12-time executive employeesmonth period, to a monthly automobile allowance as contemplated by Section 5 below; further provided provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. Employee shall have the option to receive the present value of the benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such continuation of compensation compensation, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the such 12-month period in which he is entitled to the compensation such compensation, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s Employers’ obligations for such compensation compensation, benefits and benefits monthly automobile allowance shall be reduced by the amount Employee receives from his new employer for compensation compensation, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, Employers and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to EmployerEmployers.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections SECTION 3(c) or OR 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 12 months, (ii) to receive (A) a pro rata portion (based on a fraction bonus equal to the numerator average of which is the number bonuses earned pursuant to the terms of days Employee worked SECTION 2(b) in the year of termination and denominator of which is 365) of the bonus set forth in Section 2(b) which Employee would have been entitled to receive for two years immediately preceding the year in which termination occurs Employee is terminated, or (B) if this Agreement is terminated pursuant to SECTION 3(c) OR 3(d) during the performance objectives established second year of this Agreement, a bonus equal to the bonus earned pursuant to SECTION 2(b) in Employer’s Annual Incentive Plan are achievedthe year immediately preceding the year in which Employee is terminated; PROVIDED, and HOWEVER, in either case, that if no bonus was earned in the applicable year(s) immediately preceding the year in which Employee is terminated, then the bonus for such applicable year shall be deemed zero for purposes of computing the bonus under this SECTION 4(d) and, PROVIDED, FURTHER, that if this Agreement is terminated pursuant to SECTION 3(c) OR 3(d) during the first year of this Agreement, then Employee shall not receive a bonus under this SECTION 4(d), (iii) until the first anniversary of the date of terminationduring such 12-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(eSECTION 2(c) above; provided PROVIDED that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers' employees, and (iv) during such 12-time executive employeesmonth period, to a monthly automobile allowance as contemplated by SECTION 5 below; further provided PROVIDED, HOWEVER, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers' 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. If Employee is entitled to receive a bonus pursuant to SECTION 4(d)(ii) above, such bonus, if any, shall be payable in twelve (12) equal monthly installments, to be paid on or before the fifth (5th) day of each month, with the first monthly installment payment beginning in the mouth immediately following the month in which Employee was terminated and continuing thereafter for the next eleven (11) consecutive months. Employee shall have the option to receive the present value of the compensation, bonus and benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s 's death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 12-month period, such continuation of compensation compensation, bonus, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s 's death. In the event Employee obtains employment elsewhere during the such 12-month period in which he is entitled to the compensation such compensation, bonus, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; providedPROVIDED, howeverHOWEVER, that Employer’s Employers' obligations for such compensation compensation, bonus, benefits and benefits monthly automobile allowance shall be reduced by the amount Employee receives from his new employer for compensation compensation. bonus, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(cSECTION 4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s 's employment with EmployerEmployers, and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to Employer.Employers,

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled entitled: (i) to continue to receive from Employer his then current Basic CompensationCompensation (“Salary Continuation”), such amount to continue to be paid in accordance with Employer’s payroll practices until the first anniversary of the date of termination, ; (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked was employed in the year of termination and denominator of which is 365) of the full bonus set forth in Section 2(b) which that Employee would have been entitled to receive under Employer’s Annual Incentive Plan in accordance with Section 2(b) for the year in which termination occurs if occurred had Employee been employed by the Employer through the date on which such bonus is paid in accordance with such Plan and based on the Employer’s and Employee’s actual results and performance objectives established in Employer’s Annual Incentive Plan are achievedunder such Plan, and which pro rata bonus shall be paid during the calendar year following the calendar year during which termination occurred; and (iii) until the first anniversary of the date of termination, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(d) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-time executive employees; further provided that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such continuation of compensation and benefits shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, and notwithstanding anything to the commencement of contrary, the payment of such sums the amounts described in Section 4(c)(i), (ii) and (iii) (collectively, the “Severance Payments”) by Employer shall not begin until be made or commence, as applicable, within 14 days following the date Employee executes and delivers a general release (the “Release”) of all claims in form and substance satisfactory to Employer, and such Release becomes irrevocable. If Employee fails to execute and deliver the Release at a time so that the Release becomes irrevocable by its terms within sixty (60) days following Separation from Service (as defined in Treasury Regulation Section 1.409A-1(h)), the obligation to pay the Severance Payments shall be null and void, and no payments or benefits shall be paid or provided pursuant to Section 4(c). Notwithstanding the foregoing, if the seventy-fourth day following Separation from Service is in a different calendar year than the date of Separation from Service and Employee executes and delivers the Release so that the Release becomes irrevocable by its terms within sixty (60) days following Separation from Service, then payment of the Severance Payments shall be made or commence, as applicable, on the later of (x) the date otherwise required; or (y) the earlier of the seventy-fourth day after Separation from Service, or January 15.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled entitled: (i) to continue to receive from Employer twelve (12) months of his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s payroll practices until (the first anniversary of the date of termination“Salary Continuation”), which shall be paid no less frequently than one payment per month; (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked was employed in the year of termination and the denominator of which is 365) of the bonus set forth contemplated in Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the Employment Period had not terminated and to the extent the performance objectives established in and other terms of Employer’s Annual Incentive Plan in effect for such year are achievedsatisfied, and which shall be paid during the calendar year following the calendar year during which termination occurred; and (iii) until the first anniversary of the date of terminationtermination (the “Severance Period”), eligibility for participation in the Employer’s medical, dental, and vision group health plans that are provided to active employees from time to time following the termination date. The Employer need not continue to receive provide a benefit to Employee if it has terminated that benefit with respect to active employees. The Employee will be responsible for payment of one hundred percent of the benefits cost of coverage to which he would otherwise be entitled the Employer on an after-tax basis. If Employee participates in any such plans during the Employment Severance Period, his/her rights under COBRA will commence at the end of the Severance Period. Employer shall pay to Employee each month during the Severance Period pursuant an amount equal to Section 2(e) above; provided the Employer subsidy for active employees for such month for the level of medical, dental and vision coverage, if any, that was in effect for the Employee at the time of termination of employment. The Tax Gross Up will be added to this payment. This payment and the Tax Gross Up thereon shall continue to make be the same contributions toward such “Health Benefit.” The Health Benefit will change as the subsidy for the coverage as Employee was making level in effect on the date of terminationtermination of employment changes for active employees, with such adjustments to contributions as are made generally for all Employer’s full-time executive employees; further provided that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. In but will not change if the event of Employee’s death during the period in which he level of coverage changes or is entitled to the compensation and benefits described in this Section 4(c), such continuation of compensation and benefits shall immediately cease upon Employee’s deathterminated. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, and the commencement of the payment of such sums the Salary Continuation by Employer shall not begin until within 14 days following the date Employee executes and delivers a general release (the “Release”) of all claims in form and substance satisfactory to Employer, provided such Release has become irrevocable. If Employee fails to execute and deliver the Release at a time so that the Release becomes irrevocable by its terms within sixty (60) days following separation from Service, this Agreement shall be null and void, and no payments or benefits shall be paid or provided, except for benefits previously provided. The first payment of Salary Continuation shall include all payments that would have been made if Employer had delivered the Release on the date of Separation from Service. Notwithstanding the foregoing, if the seventy-fourth day following Separation from Service is in a different calendar year than the date of Separation from Service, then payment of Salary Continuation shall commence on the later of (x) the date otherwise required; or (y) the earlier of the seventy-fourth day after Separation from Service, or January 15.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 18 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the his bonus set forth in pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achievedEmployee is terminated, and (iii) until the first anniversary of the date of terminationduring such 18-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees, and (iv) during such 18-time executive employeesmonth period, to a car allowance as contemplated by Section 5 below; further provided provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. Employee shall have the option to receive the present value of the compensation, bonus and benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 18-month period, such continuation of compensation compensation, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the such 18-month period in which he is entitled to the compensation such compensation, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s Employers’ obligations for such compensation bonus, benefits and benefits car allowance, as the case may be, shall be reduced by the amount Employee receives from his new employer for compensation bonus, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with EmployerEmployers, and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to EmployerEmployers.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensationbasic compensation hereunder, plus an amount in lieu of bonus, which amount shall be determined as the average annual bonus received by Employee under Section 2(b) hereof for the appropriate period (prorated for partial portions thereof) for the previous 24 months, such amount to continue to be paid in accordance with Employer’s the payroll practices until of Employers for a period equal to the first anniversary of the date of termination, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked period remaining in the year of Employment Period immediately prior to such termination (the "PAYMENT PERIOD") and denominator of which is 365) of the bonus set forth in Section 2(b) which Employee would have been shall further be entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achieved, and (iii) until the first anniversary of the date of termination, during such period both to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e3(e) above; provided that above and to reimbursement for expenses incurred by Employee shall continue to make the same contributions toward such coverage own and maintain an automobile as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-time executive employees; further provided that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this contemplated by Section 4(c), such continuation of compensation and benefits shall immediately cease upon Employee’s death5 below. In the event Employee obtains employment elsewhere becomes reemployed during the period in which he is entitled to Payment Period (whether as employee or independent contractor), the compensation and benefits described in amounts payable under this Section 4(c), such compensation ) will be offset and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount of compensation received by Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employerservices performed during the Payment Period, and the commencement of the payment of such sums by Employer Employee shall not begin until be entitled to receive benefits described in Section 3(e) to the extent such benefits are or would be duplicated by benefits to which Employee executes and delivers a general release of all claims in form and substance satisfactory to Employeris entitled from his new employer during the Payment Period.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensationbasic compensation hereunder, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to ten months, and (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the any eligible bonus set forth in Section 2(b) which Employee would have that has been entitled to receive earned but not paid for the year preceding the year in which termination occurs if in accordance with the performance objectives established in Employer’s Annual Incentive Plan are achievedPlan, and (iii) until the first anniversary of the date of terminationduring such ten month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such benefit coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-time executive Employers’ employees; further provided that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such continuation of compensation and benefits shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such ten month period, such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, Employers and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all such claims in form and substance mutually satisfactory to EmployerEmployers and Employee.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s the payroll practices of Employer until the first second anniversary of the date Effective Date; provided that, at Employee’s option, Employee shall be entitled to receive the present value of terminationthe aggregate amount (at a 12% discount) of such payments in a lump sum within thirty (30) days after termination of the Employment Period, (ii) any unreimbursed expenses pursuant to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the bonus set forth in Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achieved5 below, and (iii) until the first second anniversary of the date of terminationEffective Date, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-time executive employees; further provided that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. If the Employment Period is terminated pursuant to Sections 3(c) or 3(d) above, (i) any Options held by Employee that have vested as of the date of termination shall remain exercisable for a period expiring on the earlier of ninety (90) days following the second anniversary of the Effective Date or one (1) year following such date of termination (or, if earlier, until the expiration of the term of such Options), whereupon such Options shall terminate and (ii) any Options held by Employee that have not vested as of the date of termination shall continue to vest until the second anniversary of the Effective Date, and upon such vesting, shall remain exercisable for a period of ninety (90) days thereafter, provided that, in the event Employee fails to comply with Section 7 through Section 11 of this Agreement, Employee shall immediately forfeit all outstanding Options, whether vested or unvested. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in continued payment of his Basic Compensation under this Section 4(c), such continuation of Basic Compensation shall be continue to be payable to Employee’s estate, heirs or beneficiaries, as applicable, for the period described above, but any other compensation and or benefits payable to Employee shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, and the commencement of the payment of such sums by Employer shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to Employer.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer his Employers her then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 18 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the her bonus set forth in pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achievedEmployee is terminated, and (iii) until the first anniversary of the date of terminationduring such 18-month period, to continue to receive the benefits to which he she would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees, and (iv) during such 18-time executive employeesmonth period, to a monthly automobile allowance as contemplated by Section 5 below; further provided provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. Employee shall have the option to receive the present value of the compensation, bonus and benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 18-month period, such continuation of compensation compensation, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the such 18-month period in which he is entitled to the compensation such compensation, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s Employers’ obligations for such compensation bonus, benefits and benefits monthly automobile allowance shall be reduced by the amount Employee receives from his her new employer for compensation bonus, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with EmployerEmployers, and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to EmployerEmployers.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled entitled: (i) to continue to receive from Employer his then current Basic CompensationCompensation (“Salary Continuation”), such amount to continue to be paid in accordance with Employer’s payroll practices until the first anniversary of the date of termination, ; (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked was employed in the year of termination and denominator of which is 365) of the full bonus set forth in Section 2(b) which that Employee would have been entitled to receive under Employer’s Annual Incentive Plan in accordance with Section 2(b) for the year in which termination occurs if occurred had Employee been employed by the Employer through the date on which such bonus is paid in accordance with such Plan and based on the Employer’s and Employee’s actual results and performance objectives established in Employer’s Annual Incentive Plan are achievedunder such Plan, and which pro rata bonus shall be paid during the calendar year following the calendar year during which termination occurred; and (iii) until the first anniversary of the date of termination, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(d) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s full-time executive employees; further provided that in such event Employee shall no longer be entitled to 6/21/2012 5 participate in any of Employer’s 401(k) plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such continuation of compensation and benefits shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the period in which he is entitled to the compensation and benefits described in this Section 4(c), such compensation and benefits shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s obligations for such compensation and benefits shall be reduced by the amount Employee receives from his new employer for compensation and benefits. The sums received by Employee under this Section 4(c) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with Employer, and notwithstanding anything to the commencement of contrary, the payment of such sums the amounts described in Section 4(c)(i), (ii) and (iii) (collectively, the “Severance Payments”) by Employer shall not begin until be made or commence, as applicable, within 14 days following the date Employee executes and delivers a general release (the “Release”) of all claims in form and substance satisfactory to Employer, and such Release becomes irrevocable. If Employee fails to execute and deliver the Release at a time so that the Release becomes irrevocable by its terms within sixty (60) days following Separation from Service (as defined in Treasury Regulation Section 1.409A-1(h)), the obligation to pay the Severance Payments shall be null and void, and no payments or benefits shall be paid or provided pursuant to Section 4(c). Notwithstanding the foregoing, if the seventy-fourth day following Separation from Service is in a different calendar year than the date of Separation from Service and Employee executes and delivers the Release so that the Release becomes irrevocable by its terms within sixty (60) days following Separation from Service, then payment of the Severance Payments shall be made or commence, as applicable, on the later of (x) the date otherwise required; or (y) the earlier of the seventy-fourth day after Separation from Service, or January 15.

Termination Without Cause; Constructive Termination. If the Employment Period is terminated pursuant to Sections Section 3(c) or 3(d) above, this Agreement shall terminate and Employee shall be entitled (i) to continue to receive from Employer Employers his then current Basic Compensation, such amount to continue to be paid in accordance with Employer’s the payroll practices until the first anniversary of the date of terminationEmployers for a period equal to 18 months, (ii) to receive a pro rata portion (based on a fraction the numerator of which is the number of days Employee worked in the year of termination and denominator of which is 365) of the his bonus set forth in pursuant to Section 2(b) which Employee would have been entitled to receive for the year in which termination occurs if the performance objectives established in Employer’s Annual Incentive Plan are achievedEmployee is terminated, and (iii) until the first anniversary of the date of terminationduring such 18-month period, to continue to receive the benefits to which he would otherwise be entitled during the Employment Period pursuant to Section 2(e2(c) above; provided that Employee shall continue to make the same contributions toward such coverage as Employee was making on the date of termination, with such adjustments to contributions as are made generally for all Employer’s fullEmployers’ employees, and (iv) during such 18-time executive employeesmonth period, to a monthly automobile allowance as contemplated by Section 5 below; further provided provided, however, that in such event Employee shall no longer be entitled to participate in any of Employer’s 401(k) Employers’ 401K plans, excess savings plans, tax qualified profit sharing plans or any other retirement plans. Employee shall have the option to receive the present value of the compensation, bonus and benefits (at a 12% discount) described in the immediately preceding sentence in a lump sum payment, with such option to be exercised by Employee in writing within ten (10) days of termination and Employer shall make such lump sum payment within thirty (30) days of receiving the written notice from Employee. In the event of Employee’s death during the period in which he is entitled to the compensation and benefits described in this Section 4(c)such 18-month period, such continuation of compensation compensation, benefits and benefits monthly automobile allowance shall immediately cease upon Employee’s death. In the event Employee obtains employment elsewhere during the such 18-month period in which he is entitled to the compensation such compensation, benefits and benefits described in this Section 4(c), such compensation and benefits monthly automobile allowance shall continue for the period described above notwithstanding such reemployment of Employee; provided, however, that Employer’s Employers’ obligations for such compensation bonus, benefits and benefits monthly automobile allowance shall be reduced by the amount Employee receives from his new employer for compensation bonus, benefits and benefitsautomobile allowance. The sums received by Employee under this Section 4(c4(d) shall be considered liquidated damages in respect of claims based on any provisions of this Agreement or any claims arising out of Employee’s employment with EmployerEmployers, and the commencement of the payment of such sums by Employer Employers shall not begin until Employee executes and delivers a general release of all claims in form and substance satisfactory to EmployerEmployers.