Common use of Termination Without Cause; For Good Reason Clause in Contracts

Termination Without Cause; For Good Reason. If the Company terminates this Agreement without Cause, or if Executive terminates this Agreement for Good Reason, then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If the Company terminates this Agreement without Cause, or if Executive terminates this Agreement for Good Reason, then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00six (6) months of Executive’s Base Salary in effect at that time, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If the Company terminates this Agreement without Cause, or if Executive terminates this Agreement for Good Reason, then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00nine (9) months of Executive’s Base Salary in effect at that time, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six nine (69) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six nine-month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If the Company terminates this Agreement without Cause, or if Executive terminates this Agreement for Good Reason, then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00175,000.00, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six six-month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 9.2.1. Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 9.2.2. Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 9.2.3. Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 9.2.4. Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 9.2.5. The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If the Company terminates this Agreement without Cause, or if Executive terminates this Agreement for Good Reason, then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“"Termination Date”") of a separation agreement and release of all claims (“"Separation Agreement”") in a form acceptable substantially similar to the Company that attached as Exhibit A hereto and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00six (6) months of Executive’s Base Salary, less applicable withholdings (“"Severance Payment”"); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (“"COBRA”"), the Company will pay to Executive in addition to the Severance Payment the equivalent of that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“"COBRA Coverage”"). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six (6) month anniversary thereof (the “"Severance Period”"). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “"Severance Benefits.”" 9.2.1 9.2.1. Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not materially breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 9.2.2. Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” ìpublicly tradedî within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” ìspecified employeeî (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).Section

Termination Without Cause; For Good Reason. If If, during a Protection Period, the Company terminates this Agreement without Cause, Executive is involuntarily Terminated other than for Cause or if Executive terminates this Agreement voluntarily Terminates for Good Reason, then RFC or the Change Entity shall: (a) Within thirty (30) days following the Executive’s Termination, pay to the Executive a lump sum cash amount equal to two and ninety-nine hundredths (2.99) times the Executive’s Annual Direct Salary, subject to applicable withholdings and taxes; (b) Provide to the Executive (and the Executive’s execution family, if applicable, and delivery if the Executive had elected family coverage on the day before the date of Termination) for a period of three (3) years continued health care, life insurance and disability insurance coverage at the same level (both separately with respect to each line of coverage and in the aggregate) and subject to the Company within a time period specified by same terms that were in effect on the Company after first day of the Protection Period. These benefits will be provided under the insured arrangements maintained for active employees without cost to the Executive. However, if RFC or the Change Entity is unable to provide these benefits to the Executive through an insured arrangement maintained for active employees and with the same tax consequences available to active employees (“Equivalent Coverage”), RFC or the Change Entity, whichever is appropriate, will distribute to the Executive additional cash equal to the Executive’s effective date cost of termination procuring Equivalent Coverage (“Termination DatePremium Burden”) (provided, however, that the Executives does in fact procure Equivalent Coverage), plus an additional cash amount sufficient to ensure that after all applicable federal, state and local income, employment, wage and excise taxes (including those imposed under Section 4999 of a separation agreement and release of all claims the Code with respect to this amount) (the “Separation AgreementGross-Up”) in a form acceptable ), the Executive has remaining cash equal to the Company Premium Burden. Collectively, the Gross-Up and Executive’s nonthe Premium Burden are referred to as the “Welfare Benefit Replacement Cost”. The Executive agrees to make available to RFC or the Change Entity any information reasonably necessary to calculate the amount of the Gross-revocation Up; and (c) The Executive also will be entitled to receive any other payments or benefits to which he is then entitled under the terms of such Separation Agreementany other contract, arrangement, agreement, plan or program in which he is or has been a participant, payable pursuant to the terms of the applicable contract, arrangement, agreement, plan or program. The provisions of this Section 3.2 shall be subject to the following: (i) any continuation of welfare benefits, other than the Company shall pay Executive severance pay health care plan during the applicable COBRA continuation period described in an amount equal to $200,000.00Section 4980B of the Code, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under any payment of the Company’s group medical insurance plan Welfare Benefit Replacement Cost made pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, Section 3.2(b) shall first be treated as amended (a “COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly tradedlimited payment” within the meaning of Code Section 409A(a)(2)(BTreasury Regulation §1.409A-1(b)(9)(v)(D) and Executive is a “specified employee” (as defined any payments in Treasury Regulation Section 1.409A-1(i)) at excess of the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first limited payment shall be in an amount equal subject to the total amount to which Executive would otherwise have been entitled to during following limitations: (A) no benefit shall be provided, and no payment shall be made for the Welfare Benefit Replacement Cost incurred beyond the period following described in Section 3.2(b) ; (B) the date amount of termination if benefits provided or payments made during any taxable year of the deferral had Executive may not been required, less affect the amount of benefits provided or expenses eligible for payment to the Executive in any portion other taxable year; (C) any payment shall be made by no later than the end of the Executive’s premium taxable year following the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion taxable year of the Severance Payments payable hereunder that do not exceed two times Executive in which the lesser of expense being paid was incurred; and (iD) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (right to benefits or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall payment may not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty liquidation or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executiveexchange for another benefit. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If prior to the expiration of the Term, the Executive resigns from his employment hereunder for Good Reason or the Company terminates this Agreement the Executive’s employment hereunder without Cause, Cause (other than a termination by reason of death or if Executive terminates this Agreement for Good ReasonDisability), then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay or provide the Executive severance pay in the Amounts and Benefits and the following: (1) an amount equal to $200,000.00the then-current Base Salary, less applicable withholdings which shall be payable in ratable installments pursuant to the Company’s standard payroll procedures for twelve (12) months following the Date of Termination; (2) any Annual Bonus earned but unpaid for a prior year (the “Prior Year Bonus”), which shall be payable in full in a lump sum cash payment to be made to the Executive on the date that is sixty (60) days following the Date of Termination or the date such bonus would be paid if the Executive had remained an employee of the Company, if later; provided, the Release is executed in one taxable year and becomes effective in another taxable year, payment shall not be made until the second taxable year; (3) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, a pro-rata portion of the Executive’s Annual Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the amount of such Annual Bonus which would be due for the full fiscal year by a fraction, the numerator of which is the number of days during the fiscal year of termination that the Executive is employed by the Company and the denominator of which is 365), paid in accordance with Section 4(b) (“Severance PaymentPro Rata Bonus”); and . The Pro Rata Bonus shall be payable at the time the Annual Bonus would have been paid if Executive’s employment had not terminated; (ii4) if Executive properly elects subject to the Executive’s timely election of continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Consolidated Omnibus Budget Reconciliation Act of 19741985, as amended (“COBRA”), with respect to the Company will pay that percentage of the premium for such medical plan coverage Company’s group health insurance plans in which the Company bears for similarly situated active Company employees and their enrolled family members Executive participated immediately prior to the Date of Termination Date through (“COBRA Continuation Coverage”), the Company shall pay the full cost of COBRA Continuation Coverage for the Executive and his eligible dependents until the earlier of (a) six (6) months from when the Termination Date; (b) the date Executive first becomes eligible for coverage under any group another employer’s health plan maintained by another employer of Executive or his or her spouse; plan, or (cb) eighteen (18) months following the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions Date of Termination; and (5) any unvested portion of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, Inducement RSUs shall accelerate and become fully vested on the Severance Payment Date of Termination and the shares covered by the Inducement RSUs shall be payable in equal periodic installments in accordance with distributed to the Company’s payroll practices and subject to withholding taxes Executive on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period thirty (30) days following the date Date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of Termination (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISAsecurities law restrictions).

Termination Without Cause; For Good Reason. If the Company terminates this Agreement without Cause, or if Executive terminates this Agreement for Good Reason, then subject to Executive’s execution and delivery to the Company within a time period specified by the Company after Executive’s effective date of termination (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00six (6) months of Executive’s Base Salary in effect at that time, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 9.2.1. Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 9.2.2. Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 9.2.3. Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2. 9.2.4 9.2.4. Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 9.2.5. The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If If, during a Protection Period, the Company terminates this Agreement without Cause, Executive is involuntarily Terminated other than for Cause or if Executive terminates this Agreement voluntarily Terminates for Good Reason, then RFC or the Change Entity shall: (a) Within thirty (30) days following the Executive’s Termination, pay to the Executive a lump sum cash amount equal to two (2) times the Executive’s Annual Direct Salary, subject to applicable withholdings and taxes; (b) Provide to the Executive (and the Executive’s execution family, if applicable, and delivery if the Executive had elected family coverage on the day before the date of Termination) for a period of two (2) years continued health care, life insurance and disability insurance coverage at the same level (both separately with respect to each line of coverage and in the aggregate) and subject to the Company within a time period specified by same terms that were in effect on the Company after first day of the Protection Period. These benefits will be provided under the insured arrangements maintained for active employees without cost to the Executive. However, if RFC or the Change Entity is unable to provide these benefits to the Executive through an insured arrangement maintained for active employees and with the same tax consequences available to active employees (“Equivalent Coverage”), RFC or the Change Entity, whichever is appropriate, will distribute to the Executive additional cash equal to the Executive’s effective date cost of termination procuring Equivalent Coverage (“Termination DatePremium Burden”) (provided, however, that the Executives does in fact procure Equivalent Coverage), plus an additional cash amount sufficient to ensure that after all applicable federal, state and local income, employment, wage and excise taxes (including those imposed under Section 4999 of a separation agreement and release of all claims the Code with respect to this amount) (the “Separation AgreementGross-Up”) in a form acceptable ), the Executive has remaining cash equal to the Company Premium Burden. Collectively, the Gross-Up and Executive’s nonthe Premium Burden are referred to as the “Welfare Benefit Replacement Cost”. The Executive agrees to make available to RFC or the Change Entity any information reasonably necessary to calculate the amount of the Gross-revocation Up; and (c) The Executive also will be entitled to receive any other payments or benefits to which he is then entitled under the terms of such Separation Agreementany other contract, arrangement, agreement, plan or program in which he is or has been a participant, payable pursuant to the terms of the applicable contract, arrangement, agreement, plan or program. The provisions of Section 3.2 shall be subject to the following: (i) any continuation of welfare benefit, other than the Company shall pay Executive severance pay health care plan during the applicable COBRA continuation period described in an amount equal to $200,000.00Section 4980B of the Code, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under any payment of the Company’s group medical insurance plan Welfare Benefit Replacement Cost made pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974, Section 3.2(b) shall first be treated as amended (a “COBRA”), the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”). The applicable Severance Commencement Date shall be the first regularly scheduled Company payroll date that is at least 45 days after the Executive’s Termination Date. Collectively, the Severance Payment and COBRA Coverage shall be referred to herein as the “Severance Benefits.” 9.2.1 Notwithstanding the foregoing, Executive shall be entitled to Severance Benefits in accordance with this Section 9.2 only so long as Executive has not breached any of the provisions of the Separation Agreement, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly tradedlimited payment” within the meaning of Code Section 409A(a)(2)(B) and Executive is a “specified employee” (as defined in Treasury Regulation Section 1.409A-1(i)§1.409A-1(b)(9)(v)(D) at any payments in excess of the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable to Executive during the first six months and one day following the date of his or her separation from service pursuant to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first limited payment shall be in an amount equal subject to the total amount to which Executive would otherwise have been entitled to during following limitations: (A) no payment shall be for the Welfare Benefit Replacement Cost incurred beyond the period following described in Section 3.2; (B) the date amount of termination if benefits provided or payments made during any taxable year of the deferral had Executive may not been required, less affect the amount of benefits provided or expenses eligible for payment to the Executive in any portion other taxable year; (C) any payment shall be made by no later than the end of the Executive’s premium taxable year following the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion taxable year of the Severance Payments payable hereunder that do not exceed two times Executive in which the lesser of expense being paid was incurred; and (iD) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (right to benefits or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall payment may not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty liquidation or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executiveexchange for another benefit. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).

Termination Without Cause; For Good Reason. If or due to Executive's death or Permanent Disability. The Company may terminate Executive's employment without Cause at any time upon 15 days' prior written Notice to Executive, and Executive may terminate her employment with Good Reason at any time upon 15 days' prior written Notice to the Company terminates this Agreement Company, in each case, subject to any applicable cure periods (in the case of a termination without Cause, Cause or if Executive terminates this Agreement for Good Reason, then subject the date specified in any such Notice in accordance with this Section 5.1 shall constitute the “Date of Termination”). For purposes of clarity, the Company's delivery of Notice in accordance with Section 2(a) of its decision not to renew the Term shall not constitute termination without Cause, and shall be governed by Section 5.5 below. Executive's employment shall also terminate upon the occurrence of Executive's death or Permanent Disability (in the case of a termination due to Executive’s execution and delivery 's death or Permanent Disability, the date of the death or the date specified in a Notice from the Company indicating termination due to Permanent Disability shall constitute the “Date of Termination”). If Executive's employment is terminated pursuant to this Section 5.1, the Company shall promptly, or in the case of obligations described in clause (e) below, as such obligations become due to Executive, pay or provide to Executive (or her estate), (a) Executive's earned but unpaid Base Salary accrued through such Date of Termination, (b) accrued but unpaid vacation time through such Date of Termination, (c) any EBIT Bonus required to be paid to Executive pursuant to this Agreement for any fiscal year of the Company ending prior to the Date of Termination, to the extent payable, but not previously paid, (d) reimbursement of any business expenses incurred by Executive prior to the Date of Termination that are reimbursable under Section 3.6 above, and (e) any vested benefits and other amounts due to Executive under any plan, program, policy of, or other agreement with, the Company within a (together, the “Accrued Obligations”). In addition, Executive (or her estate) shall be entitled to the following payments and benefits (the “Severance”) from the Company: (i) payment, at the time period and in the manner specified in Section 5.2 below, of an aggregate amount equal to Executive's Base Salary (at the rate then in effect, but disregarding any reduction of Base Salary in violation of this Agreement) that would have been payable to the Executive had she remained employed by the Company after Executive’s effective date of termination for the period (“Termination Date”) of a separation agreement and release of all claims (“Separation Agreement”) such period, or the period described in a form acceptable to the Company and Executive’s non-revocation of such Separation Agreement: (i) the Company shall pay Executive severance pay in an amount equal to $200,000.00, less applicable withholdings (“Severance Payment”); and (ii) if Executive properly elects continuation coverage under the Company’s group medical insurance plan pursuant to Sections 601 through 607 of the Employee Retirement Income Security Act of 1974next sentence, as amended (“COBRA”)applicable, the Company will pay that percentage of the premium for such medical plan coverage which the Company bears for similarly situated active Company employees and their enrolled family members immediately prior to the Termination Date through the earlier of (a) six (6) months from the Termination Date; (b) the date Executive first becomes eligible for coverage under any group health plan maintained by another employer of Executive or his or her spouse; or (c) the date such COBRA continuation coverage otherwise terminates as to Executive under the provisions of the Company’s group medical insurance plan (“COBRA Coverage”). Except as otherwise provided below, the Severance Payment shall be payable in equal periodic installments in accordance with the Company’s payroll practices and subject to withholding taxes on each regular payroll date of the Company commencing on the applicable Severance Commencement Date and continuing through the six month anniversary thereof (the “Severance Period”) commencing on the Date of Termination and ending on the second anniversary of the Effective Date or, if later, the date which is three (3) months following delivery by the Company of Notice of its decision not to extend the Term (as contemplated by Section 2(a), which Notice, if not previously given, shall be deemed to be given on the Date of Termination for any reason other than death or Permanent Disability). The applicable Severance Commencement Date If termination occurs due to death or Permanent Disability, then such amount shall be equal to the first regularly scheduled Base Salary that would have been payable to the Executive had she remained employed by the Company payroll date that is at least 45 days after through the Executive’s Termination second anniversary of the Effective Date. Collectively, The Severance payable to the Severance Payment and COBRA Coverage shall be Executive pursuant to this paragraph (i) is hereinafter referred to herein as the “Base Salary Severance”; (ii) payment, at the time specified in Section 5.2 below, of a pro rated portion of the EBIT Bonus for the fiscal year in which the Date of Termination occurs, where such pro rated portion is equal to: (a) the amount contributed to the MIP Fund, if any, for the period (the “EBIT Period”) from January 1 of the applicable fiscal year through the last day of the fiscal quarter in which such Date of Termination occurs, multiplied by (b) the ratio determined by dividing the number of days Executive was employed during the EBIT Period by the total number of days in the EBIT Period, multiplied by (c) Executive's percentage of the MIP Fund; (iii) as of the Date of Termination, the Inducement Grant will fully vest; and (iv) continued healthcare coverage for Executive (if living) and her dependents for the Severance Benefits.” 9.2.1 Notwithstanding Period, to the foregoingextent each such individual received healthcare coverage immediately prior to such termination of employment, at the same cost to Executive and her dependants as such coverage cost immediately prior to such termination of employment (subject to premium increases affecting participants in such plans generally), provided that if the Board determines, in its sole discretion, that it is necessary or advisable for Executive to elect continuation of healthcare coverage under Section 4980B of the Code and the regulations hereunder in order for the Company to provide such coverage under its healthcare plans, and the Company so notifies the Executive, Executive shall be entitled hereby agrees to Severance Benefits in accordance with this make such an election. For the avoidance of doubt, if the Company requires that Executive elect continuation coverage under Section 9.2 only so long as Executive has not breached any 4980B of the provisions of the Separation AgreementCode, the Confidentiality Agreement, or Section 10 of this Agreement. 9.2.2 Notwithstanding the foregoing, if any equity securities of the Company or of any direct or indirect entity that is an affiliate of the Company is “publicly traded” within the meaning of Code Section 409A(a)(2)(B) such coverage shall nevertheless be provided to Executive and Executive is a “specified employee” her dependents (as defined in Treasury Regulation Section 1.409A-1(i)described above) at the time this Agreement is terminated, then subject to Section 9.2.3 below, any Severance Payments otherwise payable same cost to Executive during the first six months and one day following the date of his or her separation from service pursuant dependents as was paid for medical coverage immediately prior to this Section 9.2.2 shall be deferred until the date that is six months and one day following such separation from service, and if such payments are required to be so deferred, the first payment shall be in an amount equal to the total amount to which Executive would otherwise have been entitled to during the period following the date of termination if the deferral had not been required, less any portion of the Executive’s premium the Company paid on his or her behalf for COBRA coverage as set forth above. 9.2.3 Notwithstanding Section 9.2.2, any portion of the Severance Payments payable hereunder that do not exceed two times the lesser of (i) the sum of Executive’s annualized compensation based on the Executive’s annual rate of pay for the year immediately preceding the year of termination (or for the year of termination if Executive’s employment with Company commenced in the year of termination), adjusted for any increase in pay that was expected to continue indefinitely if the termination had not occurred and (ii) the Code Section 401(a)(17) limit applicable in the year of termination, shall be treated as separate benefits and payments for purposes of Code Section 409A, shall not be subject to the six-month and one-day delay rule in Section 9.2.2, and shall be paid as otherwise provided in Section 9.2 9.2.4 Notwithstanding the foregoing, the Severance Payment payable pursuant to this Section 9.2 shall be reduced by the amount of any compensation Executive earns with respect to any other employment during the Severance Period; provided that Executive shall have no duty or obligation to seek other employment during the Severance Period or otherwise mitigate damages hereunder. Notwithstanding any other provision of this Agreement, if, following the 's termination of his or her employment, Executive is entitled to payments or other benefits under this Section 9.2, but the Company later determines that Cause with respect to Executive exists or existed on, prior to, or after such termination of Executive, then (i) Executive shall not be entitled to any Severance Benefits pursuant to this Section 9.2, (ii) any and all Severance Benefits pursuant to this Section 9.2 shall cease, and (iii) any Separation Payments previously paid to Executive shall be returned immediately to the Company by Executive. 9.2.5 The Severance Benefits shall not constitute, and are not intended to constitute, an employee welfare benefit plan, a welfare plan, an employee pension benefit plan, a pension plan or any other plan under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1001 et seq. (ERISA).