Common use of Compensation Upon Certain Terminations Clause in Contracts

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof, or (B) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, then the Company shall pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 times the sum of (A) the average of the Executive’s Base Salary as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, or, in the event the Executive has been employed by the Company for less than five (5) calendar years, an average based upon such lesser number of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, provided that the sum of clauses (A) and (B) of this Section 10(a)(ii) plus any parachute payments attributable to the accelerated vesting provided for in Section 10(b), or otherwise provided for the benefit of Executive pursuant to this or any other agreement, plan, or arrangement shall not exceed 2.99 times the “Base Amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereof. (b) If, within the two-year period subsequent to a Change in Control of the Company, (i) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof or (ii) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, all unvested stock options, stock appreciation rights, and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything in this Agreement to the contrary, if (i) Executive is a “specified employee,” within the meaning of Section 409A of the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid as a result of the preceding sentence, shall be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i) and (ii) of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.” (d) Notwithstanding anything in this Agreement to the contrary, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof, or (B) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, then the Company shall pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 times the sum of (A) the average of the Executive’s Base Salary as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, or, in the event the Executive has been employed by the Company for less than five (5) calendar years, an average based upon such lesser number of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, provided that the sum of clauses (A) and (B) of this Section 10(a)(ii) (plus any parachute payments (as defined in Section 280G of the Internal Revenue Code (the “Code”)) attributable to the accelerated vesting provided for in Section 10(b), or otherwise provided for the benefit of Executive pursuant to this or any other agreement, plan, or arrangement arrangement) shall not exceed 2.99 times the “Base Amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereofCode. (b) If, within the two-year period subsequent to a Change in Control of the Company, (i) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof or (ii) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, all unvested stock options, stock appreciation rights, and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything in this Agreement to the contrary, if (i) Executive is a “specified employee,” within the meaning of Section 409A of the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid as a result of the preceding sentence, shall be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i) and (ii) of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.” (d) Notwithstanding anything in this Agreement to the contrary. Furthermore, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iiiii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he his employment terminates employment(whether as a result of termination by the Company, or by the Executive for Good Reason), the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” (as such term is defined for purposes of Section 409A of the Code).

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 or 7 hereof, or (B) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, then the Company shall pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s 's Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 times the sum of (A) the average of the Executive’s 's Base Salary as reported on the Executive’s 's W-2 form for the five (5) calendar years prior to the year in which such termination occurs, or, in the event the Executive has been employed by the Company for less than five (5) calendar years, an average based upon such lesser number of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on the Executive’s 's W-2 form for the five (5) calendar years prior to the year in which such termination occurs, provided that the sum of clauses (A) and (B) of this Section 10(a)(ii) plus any parachute payments attributable to the accelerated vesting provided for in Section 10(b), or otherwise provided for the benefit of Executive pursuant to this or any other agreement, plan, or arrangement shall not exceed 2.99 times the “"Base Amount” " as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereof. (b) If, within the two-year period subsequent to a Change in Control of the Company, (i) the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 or 7 hereof or (ii) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, all unvested stock options, stock appreciation rights, and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything in this Agreement to the contrary, if (i) Executive is a “specified employee,” within the meaning of Section 409A of the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid as a result of the preceding sentence, shall be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i) and (ii) of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.” (d) Notwithstanding anything in this Agreement to the contrary, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) If the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 or 7 hereof7, 8, or (B) 9 hereof or if the Executive shall terminate his or her employment for Good Reason pursuant to Section 9 10 hereof, then the Company shall pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s 's Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and; (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 three times the sum of Executive's current Base Salary (A) which for these purposes shall include the average of the Executive’s Base Salary as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, or, in the event the Executive has been employed contributions made by the Company for less than five (5) calendar years, an average based upon such lesser number of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on to the Executive’s W-2 form 's 401(k) Plan and 401(k) Plus Plan for the preceding five years); and (5iii) calendar years prior to the year in which All legal fees and expenses incurred as a result of such termination occurs(including all such fees and expenses, if any, incurred in contesting or disputing any such termination, in seeking to obtain or enforce any right or benefit provided that the sum of clauses (A) and (B) of by this Section 10(a)(ii) plus any parachute payments attributable to the accelerated vesting provided for in Section 10(b)Agreement, or otherwise provided for the benefit of Executive pursuant to in interpreting this or any other agreement, plan, or arrangement shall not exceed 2.99 times the “Base Amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereofAgreement). (b) If, within the two-year period subsequent to a Change in Control of the Company, (i) If the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 7, 8, or 7 9 hereof or (ii) if the Executive shall terminate his or her employment for Good Reason pursuant to Section 9 10 hereof, all unvested stock options, stock appreciation rights, and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything full and, in this Agreement to the contrarycase of options or stock appreciation rights, if (i) Executive is be exercisable for a “specified employee,” within period of three years following such termination, provided that in no event shall the meaning of Section 409A of option or stock appreciation right be exercisable after the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (latest date on which such option or any comparable successor provision) at the time he terminates employment, the payment made to Executive right would have expired pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid as a result of the preceding sentence, shall be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i) and (ii) of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Codeits original terms.” (d) Notwithstanding anything in this Agreement to the contrary, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) If the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 or 7 hereof7, 8, or (B) 9 hereof or if the Executive shall terminate his or her employment for Good Reason pursuant to Section 9 10 hereof, then the Company shall pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s 's Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and; (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 two times the sum of Executive's current Base Salary (A) which for these purposes shall include the average of the Executive’s Base Salary as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, or, in the event the Executive has been employed contributions made by the Company for less than five (5) calendar years, an average based upon such lesser number of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on to the Executive’s W-2 form 's 401(k) Plan and 401(k) Plus Plan for the preceding five years); and (5iii) calendar years prior to the year in which All legal fees and expenses incurred as a result of such termination occurs(including all such fees and expenses, if any, incurred in contesting or disputing any such termination, in seeking to obtain or enforce any right or benefit provided that the sum of clauses (A) and (B) of by this Section 10(a)(ii) plus any parachute payments attributable to the accelerated vesting provided for in Section 10(b)Agreement, or otherwise provided for the benefit of Executive pursuant to in interpreting this or any other agreement, plan, or arrangement shall not exceed 2.99 times the “Base Amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereofAgreement). (b) If, within the two-year period subsequent to a Change in Control of the Company, (i) If the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 7, 8, or 7 9 hereof or (ii) if the Executive shall terminate his or her employment for Good Reason pursuant to Section 9 10 hereof, all unvested stock options, stock appreciation rights, and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything full and, in this Agreement to the contrarycase of options or stock appreciation rights, if (i) Executive is be exercisable for a “specified employee,” within period of three years following such termination, provided that in no event shall the meaning of Section 409A of option or stock appreciation right be exercisable after the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (latest date on which such option or any comparable successor provision) at the time he terminates employment, the payment made to Executive right would have expired pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid as a result of the preceding sentence, shall be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i) and (ii) of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Codeits original terms.” (d) Notwithstanding anything in this Agreement to the contrary, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof, or (B) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, then the Company shall pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 times the sum of (A) the average of the Executive’s Base Salary as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, or, in the event the Executive has been employed by the Company for less than five (5) calendar years, an average based upon such lesser number of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, provided that the sum of clauses (A) and (B) of this Section 10(a)(ii) (plus any parachute payments (as defined in Section 280G of the Internal Revenue Code (the “Code”)) attributable to the accelerated vesting provided for in Section 10(b), or otherwise provided for the benefit of Executive pursuant to this or any other agreement, plan, or arrangement arrangement) shall not exceed 2.99 times the “Base Amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereofCode. (b) If, within the two-year period subsequent to a Change in Control of the Company, (i) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof or (ii) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, all unvested stock options, stock appreciation rights, and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything in this Agreement to the contrary, if (i) Executive is a “specified employee,” within the meaning of Section 409A of the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he the Company terminates Executive’s employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid as a result of the preceding sentence, shall be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i) and (ii) of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.” (d) Notwithstanding anything in this Agreement to the contrary, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.

Compensation Upon Certain Terminations. (a) If, within the two-year period subsequent to a Change in Control, (A) If the Company shall terminate the Executive’s 's employment other than pursuant to Sections 6 or 7 hereof8, 9, or (B) 10 hereof or if the Executive shall terminate his her employment for Good Reason pursuant to Section 9 11 hereof, then the Company shall I pay to the Executive in a lump sum on the fifth business day following the Date of Termination, the following amounts: (i) The Executive’s 's Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; and; (ii) In lieu of any further salary payments for periods subsequent to the Date of Termination, an amount equal to 2.99 times one hundred fifty percent (150%) of the sum Executive's Base Salary (at the rate in effect at the time Notice of Termination is given); (iii) An amount equal to the fair market value of the benefits the Executive would have received had the Benefit Plans continued (and the Executive's employment continued) for a period of eighteen months subsequent to the Date of Termination; (iv) An amount equal to one hundred fifty percent (150%) of the greater of (Ax) the most recent annual bonus received by the Executive from the Company or (y) the average of the Executive’s Base Salary as reported on annual bonuses received by the Executive’s W-2 form Executive from the Company for the five (5) calendar three years ending prior to the year in which such termination occurs, or, in the event the Executive has been employed by the Company for less than five (5) calendar years, an average based upon such lesser number Date of calendar years for which the executive has actually been employed, and (B) the average of the cash bonuses earned by the Executive as reported on the Executive’s W-2 form for the five (5) calendar years prior to the year in which such termination occurs, provided that the sum of clauses (A) and (B) of this Section 10(a)(ii) plus any parachute payments attributable to the accelerated vesting provided for in Section 10(b), or otherwise provided for the benefit of Executive pursuant to this or any other agreement, plan, or arrangement shall not exceed 2.99 times the “Base Amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, or any successor provision thereof.Termination: and (bv) If, within the two-year period subsequent to a Change in Control of the Company, (i) the Company shall terminate the Executive’s employment other than pursuant to Sections 6 or 7 hereof or (ii) the Executive shall terminate his employment for Good Reason pursuant to Section 9 hereof, all unvested stock options, stock appreciation rights, All legal fees and restricted stock awards shall immediately vest in full. (c) Notwithstanding anything in this Agreement to the contrary, if (i) Executive is a “specified employee,” within the meaning of Section 409A of the Internal Revenue Code (the “Code”) and the regulations thereunder, and (ii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation,” as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not exceed the amount set forth in Treasury Regulation section 1.409A-1(b)(9)(iii)(A). Any payment that would otherwise have been paid to Executive during such six-month period under the terms of this Agreement, and that is not paid expenses incurred as a result of the preceding sentencesuch termination (including all such fees and expenses, shall if any, incurred in contesting or disputing any such termination, in seeking to obtain or enforce any right or benefit provided by this Agreement, or in interpreting this Agreement), if such termination is determined, by arbitration, to be paid to Executive on the first day other than for "Cause" or for "Good Reason". For purposes of this Section 12, no purported reduction of the seventh month following his termination of employment. Furthermore, if Executive's Base Salary shall he effective absent the conditions set forth in clauses (i) and (ii) written consent of the first sentence of this section 10(c) are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the CodeExecutive.” (d) Notwithstanding anything in this Agreement to the contrary, if (i) Executive terminates his employment for Good Reason, (ii) Executive is a “specified employee,” within the meaning of Section 409A of the Code and the regulations thereunder, and (iii) Executive is subject to the provisions of Section 409A(a)(2)(B) of the Code (or any comparable successor provision) at the time he terminates employment, the payment made to Executive pursuant to Section 10(a)(ii) hereof (plus any other payments of “deferred compensation”, as defined in Section 409A of the Code, made to Executive pursuant to this Agreement in the six-month period following his termination of employment) shall not be paid to Executive on the fifth business day following the Date of Termination but instead will be paid to Executive on the first day of the seventh month following his termination of employment. Furthermore, if the conditions set forth in clauses (i), (ii), and (iii) of the preceding sentence are met, no payments pursuant to Section 10(a)(ii) hereof (or any other payments of deferred compensation as defined in Section 409A of the Code) may be paid to Executive unless his termination of employment qualifies as a “separation from service” as such term is defined for purposes of Section 409A of the Code.