Common use of Termination Upon Change of Control Clause in Contracts

Termination Upon Change of Control. If any Plan Participant’s employment with a member of the Company Group is terminated by such Person other than for Cause or if any Plan Participant resigns from employment with such Person for Good Reason, in each case, within one year after a Change of Control, such Plan Participant shall receive a lump sum cash payment in an amount equal to the product of (x) the Change of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment (i) will be payable by the Company to such Plan Participant in a lump sum within 30 days of such Plan Participant’s termination pursuant to the preceding sentence, (ii) is not subject to mitigation or reduction upon re-employment or otherwise and (iii) will be increased to provide for payment of an additional amount (the “Gross-Up Amount”) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 of the Code or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply to the Gross-Up Amount. Such Plan Participant shall also be entitled to the continuation of health benefits (subject to satisfying insurability requirements) and outplacement services during the Payout Period on the same basis as provided pursuant to Section 4(a), subject to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of any severance payments described in Section 4(a) above that would otherwise be payable following such termination. Notwithstanding the foregoing, if any class of NEI common stock is publicly tradable on an established securities market, no amounts shall be paid pursuant to this Section 4(b) during the first 6 months following a Participants termination unless the payments satisfy the requirements for separation pay due to involuntary separation from service as provided in Treas. Reg. 1.409A-1(b)(9)(iii).

Termination Upon Change of Control. If any Plan Participant’s employment with a member In the event that within ninety days (90) days of the Company Group is terminated by such Person other than for Cause or if any Plan Participant resigns from employment with such Person for Good Reason, in each case, within one year after a Change of Control, such Plan Participant Employee is terminated, or Employee’s status, title, position or responsibilities are materially reduced and Employee terminates his Employment, the Company shall receive a lump sum cash payment in an amount equal pay and/or provide to the product Employee, the following compensation and benefits, in lieu of (x) the Change of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment any other payments due hereunder: (i) will be payable by the Company to such Plan Participant in a lump sum within 30 days of such Plan Participant’s termination pursuant to the preceding sentence, Accrued Obligations; (ii) is not subject to mitigation or reduction upon re-employment or otherwise the Continuation Benefits; and (iii) will be increased to provide for a lump sum payment of an additional amount within ten (the “Gross-Up Amount”10) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 days of the Code Termination Date equal to two times (A) Executive’s then current Base Salary plus (B) the Annual Bonus paid or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply payable to the Gross-Up Amount. Such Plan Participant shall also be entitled to the continuation of health benefits (subject to satisfying insurability requirements) and outplacement services during the Payout Period on the same basis as provided Executive pursuant to Section 4(a), subject 4 with respect to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of any severance payments described in Section 4(a) above that would otherwise be payable following such terminationthe Company’s last full fiscal year ended prior to the Termination Date. Notwithstanding the foregoing, if any class the payment under this Section 9(b), either alone or together with other payments which the Employee has the right to receive from the Company, would constitute an “excess parachute payment” as defined in Section 280G of NEI common stock is publicly tradable on an established securities marketthe Internal Revenue Code of 1986, no amounts as amended (the “Code”), the aggregate of such credits or payments under this Agreement and other agreements shall be paid pursuant reduced to the largest amount as will result in no portion of such aggregate payments being subject to the excise tax imposed by Section 4999 of the Code. The priority of the reduction of excess parachute payments shall be in the discretion of the Employee. The Company shall give notice to the Employee as soon as practicable after its determination that Change of Control payments and benefits are subject to the excise tax, but no later than ten (10) days in advance of the due date of such Change of Control payments and benefits, specifying the proposed date of payment and the Change of Control benefits and payments subject to the excise tax. Employee shall exercise his option under this Section 4(b9(b) during by written notice to the first 6 months following a Participants termination unless Company within five (5) days in advance of the due date of the Change of Control payments satisfy and benefits specifying the requirements for separation pay due to involuntary separation from service as provided in Treas. Reg. 1.409A-1(b)(9)(iii)priority of reduction of the excess parachute payments.

Termination Upon Change of Control. If any Plan Participant’s employment with a member In the event of the Company Group is terminated by such Person other than for Cause or if any Plan Participant resigns from employment with such Person for Good Reason, in each case, within one year after a your Termination Upon Change of ControlControl during the Term provided that (except with respect to the Accrued Compensation) you deliver to Cepheid the signed Release and satisfy all conditions to make the Release effective within thirty (30) days following your termination of employment, such Plan Participant you shall receive (in lieu of any benefits pursuant to Section 9(b)) be entitled to (i) your Accrued Compensation; (ii) a lump sum cash payment equal to the sum of (A) twenty-four (24) months of your then current Base Salary and (B) two times your Target Bonus (paid at the 100% achievement level without regard to satisfaction of any target performance objectives) for the year in which the termination occurs, with such sum payable on the first business day after the thirtieth (30th) day following your termination of employment; (iii) full vesting, on the date of your termination of employment, of one hundred percent (100%) of all then-unvested outstanding stock options, restricted stock units, shares of restricted stock and other equity-based awards issued to you by Cepheid (with any vested options to remain exercisable until the earlier of (x) the end of the twelve (12)-month period following your termination of employment, (y) the applicable expiration date(s) of such options, or (z) the date such vested options are cancelled in connection with a merger, consolidation or other corporate transaction in accordance with the terms of the applicable equity incentive plan(s) and award agreement(s) under which such options were granted), provided that any performance-based awards shall vest only in accordance with the terms set forth in the applicable performance-based award agreement; and (iv) provided you timely elect to continue health coverage under COBRA, reimbursement for any monthly COBRA premium payments you make in the twenty-four (24)-month period following your termination of employment, provided that, if Cepheid determines in its sole discretion that it cannot provide the COBRA benefits described herein without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), Cepheid shall in lieu thereof provide you with a taxable lump sum payment in an amount equal to the product of (x) the Change of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment (i) then unreimbursed monthly COBRA premiums, which lump sum payment will be payable by the Company to such Plan Participant in a lump sum within 30 days of such Plan Participant’s termination pursuant to the preceding sentence, (ii) is not subject to mitigation or reduction upon re-employment or otherwise and (iii) will be increased to provide for payment of an additional amount (the “Gross-Up Amount”) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due made on the Change first business day after the thirtieth (30th) day following your termination of Control Payment under Section 4999 of the Code or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply to the Gross-Up Amount. Such Plan Participant shall also be entitled to the continuation of health benefits (subject to satisfying insurability requirements) and outplacement services during the Payout Period on the same basis as provided pursuant to Section 4(a), subject to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of any severance payments described in Section 4(a) above that would otherwise be payable following such termination. Notwithstanding the foregoing, if any class of NEI common stock is publicly tradable on an established securities market, no amounts shall be paid pursuant to this Section 4(b) during the first 6 months following a Participants termination unless the payments satisfy the requirements for separation pay due to involuntary separation from service as provided in Treas. Reg. 1.409A-1(b)(9)(iii)employment.

Termination Upon Change of Control. If any Plan Participant’s employment with a member of Notwithstanding anything to the Company Group is terminated by such Person other than for Cause or if any Plan Participant resigns from employment with such Person for Good Reasoncontrary set forth herein, in each casethe event that, within one year after a Change of Control, such Plan Participant shall either (i) your employment is terminated by the Corporation without Cause within twelve (12) months following a Change in Control, or (ii) you resign from your employment for Good Reason (as hereinafter defined) within twelve (12) months following a Change in Control: you will be entitled to receive a lump sum cash payment from the Corporation, in addition to the portion of your Base Salary that has been earned through your last day of employment and is then payable, but that has not yet been paid, and in lieu of any amounts you are entitled to receive pursuant to all other provisions of this Agreement: (A) an amount equal to your Base Salary for a period of twelve (12) months from the product termination date, payable in a single lump sum; (B) an amount equal to your earned bonus for the calendar year in which your employment termination occurs, plus any amount of your bonus for the prior calendar year that has been earned but that has not yet been paid, payable in a single lump sum; (C) an amount equal to your annual bonus for the calendar year in which your employment termination occurs, payable in a single lump sum; (D) reimbursement of the medical and dental insurance premiums for you and your eligible dependents under the Corporation’s group insurance plans at the same level you elected and was in effect as of the effective date of the termination of your employment for a period of (x12) months from the termination date, in each case subject to all applicable tax deductions and withholdings; and (E) a lump sum amount equivalent to the full gross value of your accrued vacation that has not been taken as of the effective date of your termination, calculated and paid at the rate of your then-effective gross Base Salary; provided, however, that no severance payments or insurance reimbursements shall be paid or owed unless you first sign and deliver to the Corporation a covenant not to sxx, which release and covenant shall be in a form prepared by and satisfactory to the Corporation and may incorporate post-employment obligations on your part consistent with those contemplated by this Agreement, as it may be hereafter amended and in effect upon the termination of your employment. For purposes this Agreement, “Good Reason” shall be deemed to exist with respect to any termination by your employment for any of the following reasons: (i) the relocation of the office of the Corporation at which you are principally based to a location that is more than 50 miles from the location of the Corporation’s office as of the date of this Agreement provided that such new location is more than 50 miles from the location of your primary residence as of the date of this Agreement; (ii) any failure by the Corporation to comply in all material respects with any material term of this Agreement; (iii) your demotion to a lesser position than described in Section 1 hereof or a substantial diminution of your authority, duties or responsibilities as in effect on the date of this Agreement; or (iv) a material diminution of your Base Salary and benefits, in the aggregate, unless such reduction is part of a Corporation-wide reduction in compensation and/or benefits for all of its senior executives; provided, however, that “Good Reason” shall not include a termination of your employment upon your death or disability or by the Corporation for Cause, or a reduction in title, position, responsibilities or duties solely by virtue of the Corporation being acquired in the Change of Control Multiple and made part of, or operated as a subsidiary or division of, a larger company or organization, so long as such new duties and responsibilities are reasonably commensurate with your experience. You may not resign with Good Reason, and shall not be considered to have done so for any purpose of this Agreement, unless (yA) Base Salary (you, within 60 days after the “Change initial existence of Control Payment”). The Change of Control Payment (i) will be payable the act or failure to act by the Company Corporation that constitutes “Good Reason” within the meaning of this Agreement, provide the Corporation with written notice that describes, in particular detail, the act or failure to act that you believe to constitute “Good Reason” and identify the particular clause of this paragraph that you contend is applicable to such Plan Participant in a lump sum act or failure to act; (B) the Corporation, within 30 days after its receipt of such Plan Participant’s notice, fails or refuses to rescind such act or remedy such failure to act so as to eliminate “Good Reason” for the termination pursuant by you of your employment relationship with the Corporation, and (C) you actually resign your employment with the Corporation on or before that date that is six calendar months after the initial existence of the act or failure to act by the Corporation that constitutes “Good Reason.” If the requirements of the preceding sentencesentence are not fully satisfied on a timely basis, (ii) is then your resignation from your employment with the Corporation shall not subject be deemed to mitigation or reduction upon re-employment or otherwise and (iii) will be increased to provide have been for payment of an additional amount (the “Gross-Up Amount”) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 of the Code or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, Good Reason,” you shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply to the Gross-Up Amount. Such Plan Participant shall also not be entitled to any of the continuation of health benefits (subject to satisfying insurability requirements) which you would have been entitled if you had resigned your employment with the Corporation for “Good Reason,” and outplacement services during the Payout Period on the same basis as provided pursuant Corporation shall not be required to Section 4(a), subject to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of pay any severance payments described in Section 4(a) above amount that would otherwise be payable following such termination. Notwithstanding the foregoing, if any class of NEI common stock is publicly tradable on an established securities market, no amounts shall be paid pursuant have been due to you under this Section 4(b) during the first 6 months following a Participants termination unless the payments satisfy the requirements for separation pay due to involuntary separation from service as provided in Treas. Reg. 1.409A-1(b)(9)(iii)17 had you resigned with “Good Reason.

Termination Upon Change of Control. If any Plan ParticipantIn the event Executive’s employment with a member of the Company Group is terminated by such Person the Company subsequent to a Change of Control (as hereinafter defined) for reasons other than for Cause Cause, or if any Plan Participant the Executive resigns from employment with such Person the Company for Good Reason, in each case, Reason (as hereinafter defined) within one year after following a Change of Control, such Plan Participant shall receive the Company will pay the Executive a severance in the form of a lump sum cash payment in an amount equal to the product Executive’s annual base salary at the time of (xtermination or resignation. To the extent that such amounts are in excess of the amount allowable as a deduction under Section 280(G) of the Change of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment (i) will be payable by the Company Code, or are subject to such Plan Participant in a lump sum within 30 days of such Plan Participant’s termination excise tax pursuant to the preceding sentence, (ii) is not subject to mitigation or reduction upon re-employment or otherwise and (iii) will be increased to provide for payment of an additional amount (the “Gross-Up Amount”) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 of the Code Code, the Company will gross-up any additional amounts due. All non-vested options to purchase shares of Common Stock granted under the Plans shall vest on the Termination Date and all restrictions on Restricted Stock purchased by the Executive shall, subject to applicable securities laws, rules and regulations, lapse on the Termination Date. “Change in Control” shall mean (a) the direct or indirect acquisition, whether by sale, merger, consolidation, or purchase of assets or stock, by any corresponding person, corporation, or applicable state law provision (“Excise Taxes”) and (2) any federal, state other entity or local income tax and any Excise Taxes due in respect group thereof of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses beneficial ownership (i) and (iias that term is used in Section 13(d)(11) of the immediately preceding sentence Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder) of shares in the Company which, when added to any other shares the beneficial ownership of which is held by the acquirer, shall apply to result in the Gross-Up Amount. Such Plan Participant shall also be acquirer’s having more that 33% of the votes that are entitled to the continuation be cast at meetings of health benefits (subject stockholders as to satisfying insurability requirements) and outplacement services during the Payout Period matters on the same basis which all outstanding shares are entitled to be voted as provided pursuant to Section 4(a)a single class; provided, subject to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following however, that such acquisition shall not constitute a Change of Control are for purposes of this Agreement if prior to such acquisition a resolution declaring that the acquisition shall not constitute a Change of Control is adopted by the Board with the support of a majority of the Board members who either were members of the Board for at least two years prior to the date of the vote on such resolution or were nominated for election to the Board by at least two-thirds of the Directors then still in lieu office who were members of the Board at least two years prior to the date of the vote on such resolution; and provided further, that neither the Company, nor any severance payments person who as of the date hereof was a Director or officer of the Company, nor any trustee or other fiduciary holding securities under an employee benefit plan of the Company, nor any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company shall be deemed to be an “acquirer” for purposes of this Section. b) the election during any two-year period to a majority of the seats on the Board of Directors of the Company of individuals who were not members of the Board at the beginning of such period unless such additional or replacement directors were approved by at least 80% of the continuing directors, or (c) shareholder approval of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets. “Good Reason” shall mean the occurrence of (a) a material breach of this Agreement by the Company, (b) the assignment to the Executive of duties inconsistent with his position as described in Section 4(a2 herein, or any significant adverse alteration in the status or conditions of the Executive’s employment or in the nature of the Executive’s responsibilities as described in Section 2 herein, (c) above that would otherwise the failure of the Company to continue to provide Executive with benefits substantially similar to those described in this Agreement or to continue in effect any benefit or stock option plan which is material to the Executive’s compensation, including but not limited to the Plans; provided, (d) the failure of the Company to maintain directors’ and officers’ insurance at an aggregate amount at least equal to the level provided as of the date hereof; provided, however, Executive shall not be payable following deemed to have Good Reason to terminate his employment if the reason for such termination is remedied prior to the date of termination. Notwithstanding the foregoing, if any class of NEI common stock is publicly tradable on an established securities market, no amounts shall be paid pursuant to this Section 4(b) during the first 6 months following a Participants termination unless the payments satisfy the requirements for separation pay due to involuntary separation from service as provided in Treas. Reg. 1.409A-1(b)(9)(iii).

Termination Upon Change of Control. If any Plan Participant’s employment with a member In the event that within ninety days (90) days of the Company Group is terminated by such Person other than for Cause or if any Plan Participant resigns from employment with such Person for Good Reason, in each case, within one year after a Change of Control, such Plan Participant Employee is terminated, or Employee’s status, title, position or responsibilities are materially reduced and Employee terminates her Employment, the Company shall receive a lump sum cash payment in an amount equal pay and/or provide to the product Employee, the following compensation and benefits, in lieu of (x) the Change of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment any other payments due hereunder: (i) will be payable by the Company to such Plan Participant in a lump sum within 30 days of such Plan Participant’s termination pursuant to the preceding sentence, Accrued Obligations; (ii) is not subject to mitigation or reduction upon re-employment or otherwise the Continuation Benefits; and (iii) will be increased to provide for a lump sum payment of an additional amount within ten (the “Gross-Up Amount”10) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 days of the Code Termination Date equal to two times (A) Executive’s then current Base Salary plus (B) the Annual Bonus paid or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply payable to the Gross-Up Amount. Such Plan Participant shall also be entitled to the continuation of health benefits (subject to satisfying insurability requirements) and outplacement services during the Payout Period on the same basis as provided Executive pursuant to Section 4(a), subject 4 with respect to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of any severance payments described in Section 4(a) above that would otherwise be payable following such terminationthe Company’s last full fiscal year ended prior to the Termination Date. Notwithstanding the foregoing, if any class the payment under this Section 9(b), either alone or together with other payments which the Employee has the right to receive from the Company, would constitute an “excess parachute payment” as defined in Section 280G of NEI common stock is publicly tradable on an established securities marketthe Internal Revenue Code of 1986, no amounts as amended (the “Code”), the aggregate of such credits or payments under this Agreement and other agreements shall be paid pursuant reduced to the largest amount as will result in no portion of such aggregate payments being subject to the excise tax imposed by Section 4999 of the Code. The priority of the reduction of excess parachute payments shall be in the discretion of the Employee. The Company shall give notice to the Employee as soon as practicable after its determination that Change of Control payments and benefits are subject to the excise tax, but no later than ten (10) days in advance of the due date of such Change of Control payments and benefits, specifying the proposed date of payment and the Change of Control benefits and payments subject to the excise tax. Employee shall exercise her option under this Section 4(b9(b) during by written notice to the first 6 months following a Participants termination unless Company within five (5) days in advance of the due date of the Change of Control payments satisfy and benefits specifying the requirements for separation pay due to involuntary separation from service as provided in Treas. Reg. 1.409A-1(b)(9)(iii)priority of reduction of the excess parachute payments.

Termination Upon Change of Control. If any Plan ParticipantUpon a Change of Control, as defined in Section 13.1 of the Plan, if, pursuant to Section 3(b)(4), (i) the Company or its successor elects not to continue the Employee’s employment with a member as of the date of the Change of Control, (ii) the Company Group is terminated by such Person or its successor terminates the Employee’s employment any time within 12 months following the date of the Change of Control for any reason other than Cause pursuant to Section 3(b)(i), or (iii) the Employee voluntarily terminates his employment as a result of the Company’s or its successor’s substantial reduction in the Employee’s duties and responsibilities related to the Company’s business or assets (recognizing that the Employee’s actual title and reporting responsibilities may be different, as a result of working for Cause or if any Plan Participant resigns from employment with such Person for Good Reason, in each case, within one year a larger organization after a Change of Control, such Plan Participant but his title and responsibilities shall receive not be less subordinate than the senior financial or operations officer of a lump sum cash payment in an amount equal to surviving company’s subsidiary or division whose primary business is substantially comprised of the product business of the Company), then the Employee shall be paid (xa) his then current Salary for a period of 6 months from the Change date that notice of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment (i) will be payable termination is delivered by the Company pursuant to Section 3(b)(4) in accordance with the Company’s standard payroll practices, (b) benefits payable to the Employee pursuant to the terms and conditions of any benefit plan in which the Employee participated during the term of his employment, the right to which had vested on the date of his termination under the terms and conditions of such Plan Participant plans, and (c) any unpaid expense reimbursement, which unpaid expenses shall be paid in a one lump sum within 30 10 business days of such the Termination Date. In addition, the vesting of any stock options or other incentive awards awarded under the Plan Participant’s termination pursuant shall immediately vest if the acquiring entity or successor to the preceding sentenceCompany does not assume such stock options or incentive awards or replace them with substantially equivalent stock options or incentive awards, (ii) or if so assumed or replaced, the Employee’s employment is not subject to mitigation or reduction upon re-employment or otherwise and (iii) will be increased to provide for payment of an additional amount (the “Gross-Up Amount”) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 of the Code or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply to the Gross-Up Amount. Such Plan Participant shall also be entitled to the continuation of health benefits (subject to satisfying insurability requirements) and outplacement services during the Payout Period on the same basis as provided pursuant to Section 4(a), subject to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of any severance payments described in Section 4(a) above that would otherwise be payable following such termination. Notwithstanding the foregoing, if any class of NEI common stock is publicly tradable on an established securities market, no amounts shall be paid subsequently terminated pursuant to this Section 4(b4(c)(ii) during or 4(c)(iii). The Company or its successor shall only be obligated to make the first 6 months following foregoing payment if the Employee (1) has returned all Company property in the Employee’s possession, (2) has resigned as a Participants termination unless member of the payments satisfy Board of Directors of all subsidiaries of the requirements for separation pay due Company (to involuntary separation from service as the extent applicable), and (3) signs (and does not revoke) a general release in a form to be provided in Treas. Reg. 1.409A-1(b)(9)(iii)by the Company.

Termination Upon Change of Control. If any Plan ParticipantUpon a Change of Control, as defined in Section 13.1 of the Plan, if, pursuant to Section 3(b)(4), (i) the Company or its successor elects not to continue the Employee’s employment with a member as of the date of the Change of Control, (ii) the Company Group is terminated by such Person or its successor terminates the Employee’s employment any time within 12 months following the date of the Change of Control for any reason other than Cause pursuant to Section 3(b)(i), or (iii) the Employee voluntarily terminates his employment as a result of the Company’s or its successor’s substantial reduction in the Employee’s duties and responsibilities related to the Company’s business or assets (recognizing that the Employee’s actual title and reporting responsibilities may be different, as a result of working for Cause or if any Plan Participant resigns from employment with such Person for Good Reason, in each case, within one year a larger organization after a Change of Control, such Plan Participant but his title and responsibilities shall receive not be less subordinate than the senior executive officer of a lump sum cash payment in an amount equal to surviving company’s subsidiary or division whose primary business is substantially comprised of the product business of the Company), then the Employee shall be paid (xa) his then current Salary for a period of 6 months from the Change date that notice of Control Multiple and (y) Base Salary (the “Change of Control Payment”). The Change of Control Payment (i) will be payable termination is delivered by the Company pursuant to Section 3(b)(4) in accordance with the Company’s standard payroll practices, (b) benefits payable to the Employee pursuant to the terms and conditions of any benefit plan in which the Employee participated during the term of his employment, the right to which had vested on the date of his termination under the terms and conditions of such Plan Participant plans, and (c) any unpaid expense reimbursement, which unpaid expenses shall be paid in a one lump sum within 30 10 business days of such the Termination Date. In addition, the vesting of any stock options or other incentive awards awarded under the Plan Participant’s termination pursuant shall immediately vest if the acquiring entity or successor to the preceding sentenceCompany does not assume such stock options or incentive awards or replace them with substantially equivalent stock options or incentive awards, (ii) or if so assumed or replaced, the Employee’s employment is not subject to mitigation or reduction upon re-employment or otherwise and (iii) will be increased to provide for payment of an additional amount (the “Gross-Up Amount”) such that the net amount retained by the Plan Participant, after payment of (1) any excise taxes due on the Change of Control Payment under Section 4999 of the Code or any corresponding or applicable state law provision (“Excise Taxes”) and (2) any federal, state or local income tax and any Excise Taxes due in respect of the Gross-Up Amount, shall equal the Change of Control Payment. Clauses (i) and (ii) of the immediately preceding sentence shall apply to the Gross-Up Amount. Such Plan Participant shall also be entitled to the continuation of health benefits (subject to satisfying insurability requirements) and outplacement services during the Payout Period on the same basis as provided pursuant to Section 4(a), subject to mitigation upon re-employment and receipt of comparable benefits set forth in Section 4(a). Payments made upon termination following a Change of Control are in lieu of any severance payments described in Section 4(a) above that would otherwise be payable following such termination. Notwithstanding the foregoing, if any class of NEI common stock is publicly tradable on an established securities market, no amounts shall be paid subsequently terminated pursuant to this Section 4(b4(c)(ii) during or 4(c)(iii). The Company or its successor shall only be obligated to make the first 6 months following foregoing payment if the Employee (1) has returned all Company property in the Employee’s possession, (2) has resigned as a Participants termination unless member of the payments satisfy Board of Directors of the requirements for separation pay due Company and all of its subsidiaries (to involuntary separation from service as the extent applicable), and (3) signs (and does not revoke) a general release in a form to be provided in Treas. Reg. 1.409A-1(b)(9)(iii)by the Company.