Common use of The First Retention Bonus Clause in Contracts

The First Retention Bonus. If the Executive remains continuously employed until the first anniversary of the Effective Date or if the Executive’s employment is terminated prior to the first anniversary of the Effective Date by the Company without “Cause” or for “Disability,” or by the Executive with “Good Reason” (as those terms are defined herein) or as a result of the Executive’s death, the Company shall pay the Executive three million one hundred and ninety four thousand four hundred and thirty four Dollars ($3,194,434) (the “First Retention Bonus”), in a cash lump sum, subject to Section 15 hereof, within five (5) days following the earliest of the first anniversary of the Effective Date or such Date of Termination (as defined herein). Notwithstanding the foregoing, if prior to the first anniversary of the Effective Date, while the Executive is employed by the Company, there is a “Change of Control” (as defined below), the Company shall pay the Executive, in a cash lump sum within five (5) days following the Change of Control (other than the Merger), an amount equal to the First Retention Bonus described in this Section 4(d)(i). For purposes of this Agreement a “Change of Control” shall be a change, after the Merger, in ownership or effective control of the Company or Parent within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that no Change of Control of the Company shall have occurred unless a “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and used in Sections 13(d) and 14(d) of the Exchange Act, and excluding for this purpose, (A) the Company or any Affiliate of the Company, or (B) any employee benefit plan of the Company or any Affiliate of the Company, or any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan which acquires beneficial ownership of voting securities of the Company) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least fifty percent (50%) of the out- standing voting power with regard to the election of directors or common shares of the Company or of the assets of the Company. For purposes of this Agreement, the term “Affiliate” means, with respect to the Company, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such entity. For purposes of this definition, “Control” (including the terms “Controlled by” and “under common Control with”) means possession of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of stock, as trustee or executor, by contract or otherwise. For the avoidance of doubt, in no event shall more than one First Retention Bonus be paid under this Agreement.

The First Retention Bonus. If the Executive remains continuously employed until the first anniversary of the Effective Date or if the Executive’s employment is terminated prior to the first anniversary of the Effective Date by the Company without “Cause” or for “Disability,” or by the Executive with “Good Reason” (as those terms are defined herein) or as a result of the Executive’s death, the Company shall pay the Executive three two million one hundred and ninety four thousand four seven hundred and thirty four nine thousand two hundred and sixteen Dollars ($3,194,4342,739,216) (the “First Retention Bonus”), in a cash lump sum, subject to Section 15 hereof, within five (5) days following the earliest of the first anniversary of the Effective Date or such Date of Termination (as defined herein). Notwithstanding the foregoing, if prior to the first anniversary of the Effective Date, while the Executive is employed by the Company, there is a “Change of Control” (as defined below), the Company shall pay the Executive, in a cash lump sum within five (5) days following the Change of Control (other than the Merger), an amount equal to the First Retention Bonus described in this Section 4(d)(i). For purposes of this Agreement a “Change of Control” shall be a change, after the Merger, in ownership or effective control of the Company or Parent within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that no Change of Control of the Company shall have occurred unless a “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and used in Sections 13(d) and 14(d) of the Exchange Act, and excluding for this purpose, (A) the Company or any Affiliate of the Company, or (B) any employee benefit plan of the Company or any Affiliate of the Company, or any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan which acquires beneficial ownership of voting securities of the Company) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least fifty percent (50%) of the out- standing outstanding voting power with regard to the election of directors or common shares of the Company or of the assets of the Company. For purposes of this Agreement, the term “Affiliate” means, with respect to the Company, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such entity. For purposes of this definition, “Control” (including the terms “Controlled by” and “under common Control with”) means possession of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of stock, as trustee or executor, by contract or otherwise. For the avoidance of doubt, in no event shall more than one First Retention Bonus be paid under this Agreement.

The First Retention Bonus. If the Executive remains continuously employed until the first anniversary of the Effective Date or if the Executive’s employment is terminated prior to the first anniversary of the Effective Date by the Company without “Cause” or for “Disability,” or by the Executive with “Good Reason” (as those terms are defined herein) or as a result of the Executive’s death, the Company shall pay the Executive three two million one six hundred and ninety four thousand four seven hundred and thirty four nine Dollars ($3,194,4342,694,709) (the “First Retention Bonus”), in a cash lump sum, subject to Section 15 hereof, within five (5) days following the earliest of the first anniversary of the Effective Date or such Date of Termination (as defined herein). Notwithstanding the foregoing, if prior to the first anniversary of the Effective Date, while the Executive is employed by the Company, there is a “Change of Control” (as defined below), the Company shall pay the Executive, in a cash lump sum within five (5) days following the Change of Control (other than the Merger), an amount equal to the First Retention Bonus described in this Section 4(d)(i). For purposes of this Agreement a “Change of Control” shall be a change, after the Merger, in ownership or effective control of the Company or Parent within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that no Change of Control of the Company shall have occurred unless a “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and used in Sections 13(d) and 14(d) of the Exchange Act, and excluding for this purpose, (A) the Company or any Affiliate of the Company, or (B) any employee benefit plan of the Company or any Affiliate of the Company, or any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan which acquires beneficial ownership of voting securities of the Company) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least fifty percent (50%) of the out- standing outstanding voting power with regard to the election of directors or common shares of the Company or of the assets of the Company. For purposes of this Agreement, the term “Affiliate” means, with respect to the Company, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such entity. For purposes of this definition, “Control” (including the terms “Controlled by” and “under common Control with”) means possession of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of stock, as trustee or executor, by contract or otherwise. For the avoidance of doubt, in no event shall more than one First Retention Bonus be paid under this Agreement.

The First Retention Bonus. If the Executive remains continuously employed until the first anniversary of the Effective Date or if the Executive’s employment is terminated prior to the first anniversary of the Effective Date by the Company without “Cause” or for “Disability,” or by the Executive with “Good Reason” (as those terms are defined herein) or as a result of the Executive’s death, the Company shall pay the Executive three million forty nine thousand one hundred and ninety four thousand four hundred and thirty four fifteen Dollars ($3,194,4343,049,115) (the “First Retention Bonus”), in a cash lump sum, subject to Section 15 hereof, within five (5) days following the earliest of the first anniversary of the Effective Date or such Date of Termination (as defined herein). Notwithstanding the foregoing, if prior to the first anniversary of the Effective Date, while the Executive is employed by the Company, there is a “Change of Control” (as defined below), the Company shall pay the Executive, in a cash lump sum within five (5) days following the Change of Control (other than the Merger), an amount equal to the First Retention Bonus described in this Section 4(d)(i). For purposes of this Agreement a “Change of Control” shall be a change, after the Merger, in ownership or effective control of the Company or Parent within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that no Change of Control of the Company shall have occurred unless a “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and used in Sections 13(d) and 14(d) of the Exchange Act, and excluding for this purpose, (A) the Company or any Affiliate of the Company, or (B) any employee benefit plan of the Company or any Affiliate of the Company, or any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan which acquires beneficial ownership of voting securities of the Company) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least fifty percent (50%) of the out- standing outstanding voting power with regard to the election of directors or common shares of the Company or of the assets of the Company. For purposes of this Agreement, the term “Affiliate” means, with respect to the Company, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such entity. For purposes of this definition, “Control” (including the terms “Controlled by” and “under common Control with”) means possession of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of stock, as trustee or executor, by contract or otherwise. For the avoidance of doubt, in no event shall more than one First Retention Bonus be paid under this Agreement.

The First Retention Bonus. If the Executive remains continuously employed until the first anniversary of the Effective Date or if the Executive’s employment is terminated prior to the first anniversary of the Effective Date by the Company without “Cause” or for “Disability,” or by the Executive with “Good Reason” (as those terms are defined herein) or as a result of the Executive’s death, the Company shall pay the Executive three five million one hundred and ninety four seventy seven thousand four nine hundred and thirty four fifty Dollars ($3,194,4345,177,950) (the “First Retention Bonus”), in a cash lump sum, subject to Section 15 hereof, within five (5) days following the earliest of the first anniversary of the Effective Date or such Date of Termination (as defined herein). Notwithstanding the foregoing, if prior to the first anniversary of the Effective Date, while the Executive is employed by the Company, there is a “Change of Control” (as defined below), the Company shall pay the Executive, in a cash lump sum within five (5) days following the Change of Control (other than the Merger), an amount equal to the First Retention Bonus described in this Section 4(d)(i). For purposes of this Agreement a “Change of Control” shall be a change, after the Merger, in ownership or effective control of the Company or Parent within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); provided, however, that no Change of Control of the Company shall have occurred unless a “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and used in Sections 13(d) and 14(d) of the Exchange Act, and excluding for this purpose, (A) the Company or any Affiliate of the Company, or (B) any employee benefit plan of the Company or any Affiliate of the Company, or any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan which acquires beneficial ownership of voting securities of the Company) becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of at least fifty percent (50%) of the out- standing outstanding voting power with regard to the election of directors or common shares of the Company or of the assets of the Company. For purposes of this Agreement, the term “Affiliate” means, with respect to the Company, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with, such entity. For purposes of this definition, “Control” (including the terms “Controlled by” and “under common Control with”) means possession of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of stock, as trustee or executor, by contract or otherwise. For the avoidance of doubt, in no event shall more than one First Retention Bonus be paid under this Agreement.