Common use of Termination Following Change in Control Clause in Contracts

Termination Following Change in Control. In the event of the occurrence of Constructive Termination within twelve (12) months after the effective date of a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as a result of the termination of Employee's employment following a Change of Control or Constructive Termination.

Termination Following Change in Control. In If, within the event of the occurrence of Constructive Termination within twelve (12) months after the effective date of two-year period following a Change in ControlControl Event, the Employee’s employment with the Company is terminated by the Company without Cause or by the Employee mayfor Good Reason, at then in lieu of the amounts and benefits payable pursuant to Section 5(a) above, the Company shall pay to the Employee's option, terminate or with respect to clause (5) below pay on the Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment ’s behalf: (1) by Successor within twelve (12) months after any unpaid base salary the effective Employee has earned through the date of a Change of Controltermination, or (2) by any unpaid annual bonus that the Employee within twelve has earned with respect to a year ending prior to such termination, (123) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment an amount equal to 24 months of the Severance Amount within 10 business days after Employee’s then current base salary paid, (4) the pro-rata portion of the Employee’s target bonus for the year of such termination of employment; employment (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to based on the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as number of completed days through the date of termination shall become fully vested and exercisable as of termination), such amount to be paid only if the Employee has met his pro-rated objective performance targets through the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoingtermination, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i(5) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could Employee’s target bonus for the year of termination, (6) the costs of COBRA continuation coverage or similar coverage for the Employee and his dependents from the date the Employee’s employment terminates through the earlier of (A) the date which is 24 months after the date of such termination and (B) the date on which the Employee becomes entitled to health coverage of a similar type from another employer, plus/less (7) any positive/negative accrued vacation days. The amounts described in this Section 6(b), other than those described in clause (7), shall be paid to the Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as in a result lump sum within 5 days of the termination of the Employee's ’s employment following with the Company. No amount shall be payable and no benefits shall be provided pursuant to this Section 6(b) until the Employee has executed a Change of Control or Constructive Terminationrelease and waiver agreement (substantially in the form attached hereto as Schedule B) releasing and waiving any claims against the Company and in which the Company releases and waives claims against the Employee.

Termination Following Change in Control. In the event there is a Change in Control of Illini, as defined in Section H below, during the occurrence of Constructive Termination Term, and (1) within the period commencing twelve (12) months after prior to the effective date of a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In Control and ending twelve months following the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a the Change of Controlin Control (the “Firm Term”), the Officer’s employment hereunder is terminated by the Illini other than for Cause, as defined in Section II, F; or (2) by Employee Within the Firm Term, the Officer resigns from his employment hereunder upon thirty days written notice given to Illini within twelve (12) months after thirty days following a material change in the effective date Officer’s title, authorities or duties, in effect immediately prior to the Change in Control, a reduction in the compensation or a reduction in benefits provided pursuant to this Agreement or the Compensation and Benefit Plans below the amount of compensation and benefits in effect immediately prior to the Change in Control, or a Change change of Control as the Officer’s principal place of employment without his consent to a result of a Constructive Terminationcity more than 25 miles from Springfield, Illinois, then (a) Successor the Officer shall pay Employee a lump sum cash payment equal have no further obligation to Illini hereunder, except the duty not to disclose Confidential Information in accordance with Section I, E, and Illini shall have no further obligation to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of Officer hereunder from the date of termination except (i) to pay to the Officer the salary payments described in Section I, B, in the amount in effect on the date of termination, for a period of twelve months from the date of termination, (ii) to pay to the Officer any other benefits due under the Compensation and Benefit Plans without imposing further condition or reduction thereof, and (iii) to pay to the Officer reasonable expenses of out placement within the financial institutions industry or financial industry following the date of termination; provided, however, out placement expenses shall become fully vested be paid only upon actually incurring such expenses and exercisable as Officer’s furnishing of evidence thereof to the Illini and shall not include moving or relocation expenses and provided, however, that any benefit to be provided by the Illini through cash of equivalent values or through a nonqualified arrangement or arrangements if, in the judgment of the Illini, permitting the Officer to participate in such plan after the date of termination would adversely affect the tax status of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as a result of the termination of Employee's employment following a Change of Control or Constructive Terminationplan.

Termination Following Change in Control. In If your employment by the event of Company is terminated by the Company without Cause (as defined below), or if there is a Constructive Termination (as defined below), in each case at any time within thirteen (13) months following the occurrence of Constructive Termination within a Change in Control, and if you provide the Company with a signed general release of all claims, a form of which is set forth in Exhibit A hereto, the Company shall provide you with the following severance benefits: (1) a lump sum payment equal to twelve (12) months after of your base salary at the rate in effect immediately prior to the Change in Control, less applicable withholdings, to be paid by the Company within ten (10) days of your date of termination; (2) for the period beginning on your date of termination and ending on the date which is twelve (12) full months following your date of termination (or, if earlier, the date on which you accept employment with another employer that provides comparable benefits), the Company shall pay for and provide you and your dependents with the same health benefits (e.g., medical and dental) to which you would have been entitled had you remained continuously employed by the Company during such period, including, if necessary, paying the costs associated with continuation coverage pursuant to COBRA; and (3) on your date of termination, you shall immediately become 100% vested with respect to any options to purchase the Company’s capital stock that you then hold and/or any restrictions with respect to restricted shares of the Company’s capital stock that you then hold shall immediately lapse, and you shall be entitled to exercise any such vested options until the expiration date of such options set forth in the stock option agreement(s) pursuant to which they were granted; provided, however, that if you are terminated by the Company following the effective date of a Change in Control, Employee may, at Employee's option, terminate Employee's Control described in clause (d)(2)(b) below but accept employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Company’s successor or acquirer within thirty (130) by Successor within twelve (12) months days after the effective date of a the Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of in Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal on terms and conditions not less favorable to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, you than those contained in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, Offer Letter (as amended (an "Excess Parachute Payment"by this letter agreement), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee you shall not be entitled to receive any severance benefits under this clause (c); provided, further, however, that if your employment is thereafter terminated by the successor or acquiror without Cause (as defined below), or if there is a Constructive Termination (as defined below), at any time within thirteen (13) months following the occurrence of the Change in Control, you shall be entitled to the severance benefits described above in this clause (c). You understand and agree that you shall not be entitled to any other severance pay, severance benefits, or any other compensation or benefits other than as set forth in this paragraph in the event of such a termination, other than as required under this Agreement as a result of the termination of Employee's employment following a Change of Control or Constructive Terminationapplicable law.

Termination Following Change in Control. In For the event purposes of this Agreement, a "Qualifying Termination," entitling the Executive to receive the benefits provided in Section 5 hereof, is defined to mean: layoff or involuntary termination of the occurrence Executive's employment other than for Cause (as hereinafter defined) or termination of Constructive Termination employment by the Executive for Good Reason (as hereinafter defined), all occurring within twelve (12) months two years after the effective date of a Change In Control occurs. Termination of employment shall be considered to be for "Cause," whether it occurred by resignation or discharge, if the reason for the termination of employment was the Executive's proven in a court of law or admitted embezzlement, dishonesty, fraud, conviction on a felonious or other charge involving moral turpitude, all in connection with the Company's affairs. The Board or, following a Change In Control, Employee maythe Trust Administration Committee, at Employee's option, terminate Employee's employment due shall make the determination as to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such whether the termination is for cause and such determination shall be effective upon Employee giving notice binding, final and conclusive on all concerned. Termination of employment shall be considered to Successor. In the event of termination of Employee's employment be for "Good Reason" if (1) by Successor within twelve (12) months after without the effective date express written consent of a the Executive, the Executive is assigned material duties substantially inconsistent with the Executive's positions, duties, responsibilities or status with the Company as in effect before the Change of In Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control Executive's titles or offices as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and in effect immediately prior to the occurrence Change In Control are substantially diminished or the Executive is removed from or not reelected to any of such positions, or any other action is taken by the Company or any of its affiliates which results in a diminution in the Executive's position, authority, or principal duties or responsibilities other than an event otherwise terminating insubstantial and inadvertent act that is remedied by the options. Notwithstanding Company promptly after receipt of notice given thereof by the Executive, except any such assignment, action or change resulting from the Executive's termination of employment for Cause, or from the Executive's Disability (as hereinafter defined) or death; provided, however, that notwithstanding the foregoing, in no event shall a termination of employment be considered to be for "Good Reason" if, at the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) time of the Internal Revenue Code termination, the Executive shall have had a position with a title, level of 1986, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount equal duties and responsibilities substantially similar to the maximum amount that could be paid to Employee so that no such amountExecutive's title, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject duties and responsibilities immediately prior to the terms of this Section 2Change In Control (but disregarding, Employee shall not be entitled to receive except for (i) the Company's Chairman, President and Chief Executive Officer or (ii) the Corporate Senior Vice Presidents -- General Counsel, Human Resources, Chief Financial Officer and Corporate Development, any other compensation or benefits under this Agreement changes as a result of the termination Company no longer being publicly traded or becoming a subsidiary, and any changes to conform titles to those of Employee's employment following a equivalent positions in an affiliate of the Company); (2) either the compensation or benefit entitlement of the Executive as in effect immediately prior to the Change of In Control or Constructive Terminationas increased following the Change In Control is substantially reduced; (3) the Company requires the Executive without the Executive's express written consent to be based anywhere other than the Company's location where the Executive is principally employed or another location that is not more than fifty (50) miles from the location where the Executive is principally employed immediately prior to the Change In Control, except for required travel on the Company's business to an extent substantially consistent with the Executive's business travel obligations in effect immediately prior to the Change In Control; (4) any failure by the Company to obtain an express written assumption of this Agreement from any successor to or assign of the Company; or (5) if the Executive is, on the date the Change In Control occurs, (i) the Company's Chairman, President and Chief Executive Officer or (ii) a Corporate Senior Vice President, the Executive elects for any reason to terminate his employment during the thirty-day period commencing one year after the date of the Change In Control. In the case of events described in (1) through (4), the Executive shall not be deemed to have waived a claim of Good Reason as a result of the passage of no more than 180 days between the occurrence of the event and the assertion of such claim.

Termination Following Change in Control. In If the event of Company terminates your employment with the occurrence of Company without Cause (as defined below), or if there is a Constructive Termination (as defined below), in each case, at any time on or within twelve (12) months after a Change in Control, and if you provide the Company with a signed general release of all claims and do not revoke such release, the form of which shall be reasonably acceptable to the Company, the Company shall provide you with the following severance benefits: (i) the Cash Payment, which Cash Payment shall be payable in substantially equal monthly installments over the twelve- (12)-month period commencing on your termination date, such that the Cash Payment is fully paid on the Severance Period Termination Date; (ii) in the event that you elect to receive continued health benefits pursuant to COBRA, the Company shall pay the cost of your applicable COBRA premiums until the earlier of: (x) the Severance Period Termination Date or (y) the date you are first covered under any comparable group health plan and (iii) on your date of termination, you shall immediately become 100% vested with respect to any options to purchase Common Stock that you then hold and/or any restrictions with respect to restricted shares or restricted share units of Common Stock that you then hold shall immediately lapse; provided, however, that if the Company terminates your employment following the effective date of a Change in ControlControl described in clause (e)(2) below but you accept employment with the Company’s successor or acquiror within thirty (30) days after the effective date of the Change in Control on terms and conditions not less favorable to you than those contained in this Agreement, Employee mayyou shall not be entitled to any severance benefits under this clause (c); and provided further, that if your employment is thereafter terminated by the successor or acquiror without Cause, or if there is a Constructive Termination, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor any time within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to following the occurrence of an event otherwise terminating the options. Notwithstanding the foregoingChange in Control, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 you shall be limited to an amount equal entitled to the maximum amount severance benefits described above in this clause (c). You understand and agree that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee you shall not be entitled to receive any other severance pay, severance benefits or any other compensation or benefits other than as set forth in this paragraph in the event of such a termination, other than as required under applicable law. You and the Company hereby understand and agree that during the period that the severance benefits referred to in this Agreement as a result paragraph are payable to you, you shall not be an employee of the termination Company for any purpose, including, without limitation, for the purpose of Employee's employment following a Change of Control or Constructive Terminationdetermining the Company’s payroll tax and withholding obligations.

Termination Following Change in Control. In If, within the event of the occurrence of Constructive Termination within twelve (12) months after the effective date of two-year period following a Change in ControlControl Event, the Employee’s employment with the Company is terminated by the Company without Cause or by the Employee mayfor Good Reason, at then in lieu of the amounts and benefits payable pursuant to Section 5(a) above, the Company shall pay to the Employee's option, terminate or with respect to clause (5) below pay on the Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment ’s behalf: (1) by Successor within twelve (12) months after any unpaid base salary the effective Employee has earned through the date of a Change of Controltermination, or (2) by any unpaid annual bonus that the Employee within twelve has earned with respect to a year ending prior to such termination, (123) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment an amount equal to 18 months of the Severance Amount within 10 business days after Employee’s then current base salary paid, (4) the pro-rata portion of the Employee’s target bonus for the year of such termination of employment; employment (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to based on the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as number of completed days through the date of termination shall become fully vested and exercisable as of termination), such amount to be paid only if the Employee has met his pro-rated objective performance targets through the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoingtermination, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i(5) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could Employee’s target bonus for the year of termination, (6) the costs of COBRA continuation coverage or similar coverage for the Employee and his dependents from the date the Employee’s employment terminates through the earlier of (A) the date which is 18 months after the date of such termination and (B) the date on which the Employee becomes entitled to health coverage of a similar type from another employer, plus/less (7) any positive/negative accrued vacation days. The amounts described in this Section 6(b), other than those described in clause (7), shall be paid to the Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as in a result lump sum within 5 days of the termination of the Employee's ’s employment following with the Company. No amount shall be payable and no benefits shall be provided pursuant to this Section 6(b) until the Employee has executed a Change of Control or Constructive Terminationrelease and waiver agreement (substantially in the form attached hereto as Schedule B) releasing and waiving any claims against the Company and in which the Company releases and waives claims against the Employee.

Termination Following Change in Control. In Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationCompany without Cause, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, reimbursement for any unpaid and approved expenses incurred pursuant to Section 6.6 through the Termination Date, any accrued but unpaid Base Salary and vacation and, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of eighteen months (18) months from the Termination Date, payable in equal installments on the Company’s normal payroll dates for the eighteen (18) month period following the Termination Date; and (b) an amount equal to the Discretionary Bonus which would otherwise been payable in accordance with Section 6.2 hereof for the employment year in which the Termination Date occurs, payable at such time the Discretionary Bonus, if any, would otherwise have been payable in accordance with Section 6.2 hereof; or (ii) except with regard to the payment of any amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationCompany without Cause, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, reimbursement for any unpaid and approved expenses incurred pursuant to Section 6.6 through the Termination Date, any accrued but unpaid Base Salary and vacation and, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of eighteen months (18) months from the Termination Date, payable in equal installments on the Company’s normal payroll dates for the eighteen (18) month period following the Termination Date; and (b) an amount equal to the Discretionary Bonus which would otherwise have been payable in accordance with Section 6.3 hereof for the employment year in which the Termination Date occurs, payable at such time the Discretionary Bonus, if any, would otherwise have been payable in accordance with Section 6.3 hereof; and (c) the remainder of any Non-Bonus Eligible Base Salary not already paid pursuant to section 6.2 above; or (ii) except with regard to the payment of any amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Paymentdetermined by the Company’s independent auditors using a Black-Scholes valuation methodology. Subject to the terms of this Section 290 Xxxx Xxxxx Xxxx, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as a result of the termination of Employee's employment following a Change of Control or Constructive Termination.Xxxxx 000 Xxxxxx, XX 00000 phone: 600.000.0000 toll free: 800.000.0000 fax: 600.000.0000 wxx.xxxxxxx.xxx

Termination Following Change in Control. In (i) Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of ControlCompany without Cause, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationExecutive with Good Reason, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of eighteen (18) months from the Date of Termination, in equal installments on the Company’s normal payroll dates over the eighteen (18) month period following the Date of Termination plus (b) an amount equal to the Incentive Bonus which would otherwise have been payable in accordance with Section 2.2 hereof for the Employment Year in which the Date of Termination occurs at such time the Incentive Bonus, if any, would otherwise have been payable in accordance with Section 2.2 hereof; or (ii) except with regard to the payment of an amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i)(a); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a excess parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In Notwithstanding anything to the event contrary in this Agreement, if either the Company elects to terminate the Employee without cause pursuant to Section 4E within ninety (90) days before or twenty four (24) months after a change in control or the Employee elects to resign with good reason, within twenty-four (24) months after a change in control of the occurrence Company, then as a severance benefit and in lieu of Constructive Termination within twelve all compensation or damages the Company shall (12i) pay the Employee a lump sum equal to four (4) times the average of the annual base salary plus bonuses paid to the Employee during each of the three years prior to the time of such termination or resignation, (ii) continue to provide the Employee at Company expense all medical, disability and insurance benefits available to him at the time of such termination or resignation for a period of forty-eight (48) months after such termination or resignation, or, if shorter, the maximum period allowed under the Company's policies as then in effect or under applicable law, (iii) accelerate the vesting of all unvested stock options granted to the Employee under the Company's stock option or other benefit plans so that all such stock options will vest and be fully exercisable on the date of such termination or resignation, and (iv) extend the post-termination exercise period for all stock options granted to the Employee under the Company's stock option and other benefit plans so that all such stock options will be exercisable for the longer of sixty (60) months after the effective date of a Change such termination or resignation or any longer post-termination exercise period provided in Controlsuch plan. For purposes of this subsection, Employee maythe term "change in control" shall mean any change in control that the Company would be required to report in response to Item 5(f) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successoras amended (the "Exchange Act"). Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding Without limiting the foregoing, a change in the event that any payments under this Section 2 will control shall also be deemed to constitute an have occurred if (i) any "excess parachute paymentperson" as defined in Section 280G(b)(i13(d) and 14(d) of the Internal Revenue Code Exchange Act is or becomes, directly or indirectly, the "beneficial owner" as defined in Rule 13 (d-3) under the Exchange Act of 1986securities of the Company which represent forty percent (40.0%) or more of the combined voting power of the Company's then outstanding securities, as amended but excluding from such "person" Xxxxxx Xxxxx Xxxxx, his estate, affiliates or successors; or (an "Excess Parachute Payment")ii) during any period of two (2) consecutive years, then individuals who at the payments beginning of said two (2) year period constituted the Board of Directors of the Company cease for any reason to constitute at least a majority of the Board, unless the election or nomination of each new director was approved by a vote of at least two-thirds of the directors who were in office at the beginning of said two year period, whether such individuals who were directors of the Company at the beginning of said two (2) year period are still directors at the time such approval is sought. For purposes of this subsection, the Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject have resigned if he so elects "with good reason", if he does so following a change in control as a result of the Company having done any or all of the following without the Employee's express written consent: (i) assigned the Employee different duties or changed the working environment, (ii) failed to provide administrative and secretarial support (iii) made changes in his reporting responsibilities, title, or office that are substantially inconsistent with the Employee's duties, responsibilities, titles, or offices immediately prior to the terms change in control; (iv) reduced the Employee's base salary from that in effect at the time of the change in control; (v) failed to continue any bonus plan in substantially the same form as it existed prior to the change in control and the Company has not given the Employee an equivalent benefit; (vi) required the Employee to be based more than five (5) miles from his present office location, except for required travel consistent with the Employee's present business travel obligations and subject to Section 1 above; (vii) failed to continue any plan or program for compensation, employee benefits, stock purchase or ownership, life insurance, group medical, disability, or vacation in substantially the same form as immediately prior to the change in control, or otherwise made any material reduction in the Employee's fringe benefits, and the Company has not given the Employee an equivalent benefit, or (viii) failed to obtain the assumption of this Section 2, Agreement by any successor to the Company. The Employee shall not be entitled to receive the benefits of this Section 4F if this Agreement and his employment are terminated pursuant to Section 4A, B or D. If the Employee institutes legal proceedings to enforce any provision of this Section 4F or any other compensation provision of this Agreement providing rights or benefits under this Agreement as after a result change of control, he shall be entitled to recover from the termination Company all costs, fees and expenses of Employee's employment following a Change of Control or Constructive Termination.such proceeding if he is the prevailing party

Termination Following Change in Control. In Notwithstanding subsection 3(a)(ii) and (iii) hereof, in the event case of termination, during the Term, by the Corporation other than for Cause or by the Executive for Constructive Termination, following the occurrence of Constructive Termination within twelve (12) months after the effective date of a “Change in Control,” as defined in Section 2 of the Change in Control Severance Agreement, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination the Executive shall be effective upon Employee giving notice entitled to Successor. In (i) a benefit (the event of termination of Employee's employment (1“Change in Control Benefit”) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the greater of each of the benefits otherwise provided in Section 3(a) hereof, and each of the benefits provided under Section 5(iii) of the Change in Control Severance Amount within 10 business Agreement (without regard to the “Gross-Up Payment” provided pursuant to subsection 5(vi) of the Change in Control Severance Agreement), plus (ii) an Exhibit 10.13 (continued) additional amount (the “Severance Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax (as defined in subsection 5(vi)(a) of the Change in Control Severance Agreement) on the Change in Control Benefit, and any federal, state and local income and employment taxes and Excise Tax on the Severance Gross-Up Payment, shall be equal to the Change in Control Benefit. Such Severance Gross-Up Payment shall be calculated pursuant to the procedures set out in subsection 5(vi) of the Change in Control Severance Agreement. Any gross-up payments will be made five (5) days following the date that is six (6) months following the date after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to Executive’s separation from service but in any event not later than the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as end of the date of termination shall become fully vested and exercisable as of taxable year following the date of termination of Employee's employment with Successor and prior to year in which the occurrence of an event otherwise terminating the optionsExcise Tax is incurred. Notwithstanding the foregoing, in the event that any payments under the Executive receives the Change in Control Benefit pursuant to this Section 2 will be deemed subsection 2(f) and the Severance Gross-Up Payment pursuant to constitute an "excess parachute payment" as defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"this subsection 2(f), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee Executive shall not be entitled to receive any other compensation or additional benefits under this Agreement as a result the Change in Control Severance Agreement. Payment of the termination lump sum and other amounts payable following the occurrence of Employee's employment following a Change in Control (as defined in Section 2 of the Change in Control Severance Agreement) as provided under this Section 2 shall be made without any requirement for the execution of the Release set forth in sub­section 3(a)(iii) or Constructive Terminationany other similar release.

Termination Following Change in Control. In Notwithstanding the event provisions of the occurrence of Constructive Termination within twelve (12Sections 13(a) months after the effective date of a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; and (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and herein to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoingcontrary, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" a change in control event (as defined below) occurs and (x) the Employee is terminated by the Company for any reason other than for cause pursuant to Section 11(d) within one year following such change in control (or if this Agreement is not automatically renewed prior to expiration as provided for herein within such one year period), or (y) Employee terminates his employment in accordance with Section 280G(b)(i12(a) hereof within one year following such change in control, and any such termination (or nonrenewal) constitutes a Separation from Service, then, and in that event, in lieu of the Internal Revenue Code of 1986, as amended compensation to which Employee would have been entitled pursuant to Sections 13(a) or (an "Excess Parachute Payment"b), then the payments Company shall pay to Employee, on the Termination Date, the following compensation: (i) a lump sum payment equal to two (2) year’s gross annual salary, (ii) a payment equal to two (2) times the bonus which Employee would have been eligible to receive for the year in which termination occurs, which amount shall be calculated, in the discretion of the Company, utilizing (x) audited financial statements of the Company for such year or for the four fiscal quarters preceding the Termination Date (in each case as approved by the Audit Committee of the Board of Directors of the Company), or (y) any other methodology that the Company, in good faith, determines to be appropriate; (iii) the Company shall continue the payment of premiums for hospitalization and major medical insurance until the earliest to occur of the second anniversary of the Termination Date, the date on which Employee secures full time employment that affords equivalent medical coverage, or the date on which Employee ceases to be entitled to COBRA continuation coverage; and (iv) all outstanding restricted stock, options and other awards with respect to equity interests in the Company and/or its affiliates granted to Employee under shall vest fully on such Termination Date; provided, however, that no equity award shall vest to the extent such vesting would cause the award to fail to satisfy the requirements of Code Section 409A. In the event that Employee elects to terminate his employment pursuant to paragraph 12(b) following a change in control event, this Section 2 Agreement shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, wholly terminated and Employee shall not be entitled to receive any further compensation or any other benefits provided for herein, and shall not be entitled to severance pay. Notwithstanding the foregoing, to accommodate the time necessary to conclude an audit of the Company’s financial records or as may otherwise be necessary ascertain the amount thereof, compensation payable pursuant to clause (ii) above, shall be deemed paid on the termination date if paid within the same calendar year in which termination of employment occurs or, if later, by the 15th day of the third calendar month following termination of employment; provided, Employee shall not be permitted, directly or benefits under this Agreement indirectly, to designate the taxable year of the payment of such compensation. Change in control event shall be defined to be any one of the following: (i) any merger, consolidation or reorganization in which the Company is not the surviving entity (or survives only as a subsidiary of an entity), (ii) any sale, lease, exchange, or other transfer of (or agreement to sell, lease, exchange, or otherwise transfer) all or substantially all of the assets of the Company to any other person or entity (in one transaction or a series of related transactions), (iii) dissolution or liquidation of the Company, (iv) when any person or entity, including a “group” as contemplated by Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, acquires or gains ownership or control (including, without limitation, power to vote) of more than 30% of the outstanding shares of the Company’s voting stock (based upon voting power), (v) as a result of or in connection with a contested election of directors, the termination persons who were directors of Employee's employment following the Company before such election shall cease to constitute a Change majority of Control the Board of Directors, or Constructive Termination(vi) any event that is reported by the Company under Item 5.01 of a Form 8-K filed with the Securities and Exchange Commission; provided, however, that the term “change in control event” shall not include any reorganization, merger, consolidation, sale, lease, exchange, or similar transaction involving solely the Company and one or more previously wholly-owned subsidiaries of the Company unless such matter is described in clause (vi) above.

Termination Following Change in Control. In (i) Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of ControlCompany without Cause, or by the Executive with Good Reason, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) his Base Salary as then in effect for a period of two (2) by Employee within twelve (12) months after years from the effective date Date of a Change of Control as a result of a Constructive Termination, then in equal installments on the Company’s normal payroll dates over the twenty four (a24) Successor shall pay Employee month period following the Date of Termination and continuing on the same day of each succeeding month thereafter plus (b) an amount equal to the Incentive Bonus which would otherwise been payable in accordance with Section 2.2 hereof for the Employment Year in which the Date of Termination occurs at such time the Incentive Bonus, if any, would otherwise have been payable in accordance with Section 2.2 hereof; or (ii) except with regard to the payment of an amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i)(a); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In If the event of Company terminates the occurrence of Constructive Termination Employee’s employment without Cause or the Employee terminates the Employee’s employment for Good Reason, in each case within twelve (12) months after the effective date of a Change in Control, Employee maythen in addition to the Amounts and Benefits, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor Company shall pay Employee to the Employee, in a lump sum cash payment equal to the Severance Amount sum, in cash, within 10 business fifteen (15) days after the termination Date of employment; Termination, an amount equal to $100 less than three (b3) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to times the extent required by COBRA; and greater of (ci) any outstanding options held by Employee that remain unvested as $400,000 or (ii) the average of the date of termination shall become fully vested and exercisable annual cash compensation received by the Employee on or after the Effective Date in his capacity as an employee of the date of termination of Employee's employment with Successor and prior to Company during the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" “base period” (as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”)); provided, however, that if such lump sum severance payment, either alone or together with other payments or benefits, either cash or non-cash, that the Employee has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Employee under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Section 280G of the Code), then the payments to Employee under this Section 2 such lump sum severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could be paid to will not result in receipt by the Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute of an Excess Parachute Paymentexcess parachute payment. Subject In addition to the terms foregoing, upon a termination of this Section 2the Employee’s employment as set forth above, the Employee shall not be entitled to receive the payments in the amounts contemplated, and on the dates specified, by sub-section 5(d)(ii)(1), (2) and (3). For purposes of this Section 5(d)(iii), the Employee’s cash compensation shall mean the sum of his Base Salary, plus Acquisition Payments paid to the Employee, if any, plus any other compensation or benefits under acquisition bonus payments paid to the Employee, if any, pursuant to Section 4(e) above. In the event of a conflict between the provisions of this Agreement as a result Section 5(d)(iii) and the provisions of Section 5(d)(ii), the termination provisions of Employee's employment following a Change of Control or Constructive Terminationthis Section 5(d)(iii) will control.

Termination Following Change in Control. In Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationCompany without Cause, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of twenty-four months (24) months from the Date of Termination, in equal installments on the Company’s normal payroll dates for the twenty-four months (24) month period following the Date of Termination, and continuing on the same day of each succeeding month thereafter for such twenty four month period, plus (b) an amount equal to the Bonus which would otherwise been payable in accordance with Section 6.2 hereof for the employment year in which the Date of Termination occurs at such time the Bonus, if any, would otherwise have been payable in accordance with Section 6.2 hereof; and (ii) except with regard to the payment of an amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i) (a); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationCompany without Cause, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, reimbursement for any unpaid and approved expenses incurred pursuant to Section 6.6 through the Termination Date, any accrued but unpaid Base Salary and vacation and, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee her Base Salary as then in effect for a period of eighteen months (18) months from the Termination Date, payable in equal installments on the Company’s normal payroll dates for the eighteen (18) month period following the Termination Date; and (b) an amount equal to the Discretionary Bonus which would otherwise been payable in accordance with Section 6.3 hereof for the employment year in which the Termination Date occurs, payable at such time the Discretionary Bonus, if any, would otherwise have been payable in accordance with Section 6.3 hereof; and (c) the remainder of any Non-Bonus Eligible Base Salary not already paid pursuant to section 6.2 above; or (ii) except with regard to the payment of any amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In the event of the occurrence of Constructive Termination Executive's employment hereunder is terminated without cause at any time within twelve two years after a "Change in Control" (12) months as hereinafter defined), which the Company shall be entitled to do, or if the Executive voluntarily resigns his employment hereunder within two years after the effective date of a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then following (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 relocation of the Executive's principal business days after the termination of employment; location by more than 35 miles, (b) Successor shall make available to Employee, at Employeea significant reduction in the Executive's cost duties and expense, medical and other insurance coverage at a level and responsibilities from those existing prior to the extent required by COBRA; and Change in Control or (c) a reduction in the Executive's then-current Base Salary, which the Executive shall be entitled to do, the Executive shall receive from the Company (in lieu of any outstanding options held by Employee rights or claims, other than the possible right to an incentive bonus for the period prior to termination as set forth in Section 6 hereof, that remain unvested the Executive may have in respect of this Agreement, including without limitation the provisions of Section 11.2 hereof, all of which rights or claims the Executive hereby waives and releases in consideration for the severance payments provided in this Section 11.4) as severance payments, and in consideration of the date Executive's compliance with the provisions of termination shall become fully vested Section 13 hereof for so long as payments are being made pursuant to this Section 11.4, payment of the Executive's Base Salary and exercisable as the insurance benefits described in Sections 7.4, 7.6 and 8 hereof, in each case for a period of one year beginning on the date of termination of Employeethe Executive's employment with Successor employment. In addition, under such circumstances, the Executive shall be entitled to exercise all options referenced in Section 9 hereof and prior all other options then held by the Executive which are not then exercisable, subject to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) terms and provisions of the Internal Revenue Code option agreement provided for by the terms of 1986the Plan, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount for a period equal to the maximum amount that could be paid to Employee so that no lesser of (y) one year from the date of termination for all options granted after 1996 and five years from the date of the Change in Control for all options granted before 1997 or (z) the original term of such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Paymentoptions. Subject to the terms For purposes of this Section 211.4, Employee a "Change in Control" shall not be mean the sale of all or substantially all of the Company's assets to, or the acquisition (by purchase, merger, reorganization or otherwise) of shares of the Company's capital stock representing more than 50% of the votes which all stockholders are entitled to receive cast by, any other compensation person or benefits under this Agreement as a result group of affiliated persons not presently affiliated with the termination of Employee's employment following a Change of Control or Constructive TerminationCompany.

Termination Following Change in Control. In (i) Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated during the Term and during the period in which the Executive serves as Interim Chief Executive Officer and within twelve (12) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, Company without Cause or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationExecutive with Good Reason, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of twenty-four (24) months from the Date of Termination, in equal installments on the Company’s normal payroll dates over the 24 months period following the Date of Termination plus (b) an amount equal to the Incentive Bonus which would otherwise have been payable in accordance with Section 2.2 hereof for the fiscal year in which the Date of Termination occurs at such time the Incentive Bonus, if any, would otherwise have been payable in accordance with Section 2.2 hereof; or (ii) except with regard to the payment of an amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i)(a); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a excess parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In If the event of Employee’s employment shall be terminated by the occurrence of Constructive Termination Company, with or without cause, during the Employment Period and within twelve (12) months after 180 days following the effective date of a Change in ControlControl pursuant to Section 7(f), in lieu of the obligations of the Company hereunder, all Employee’s rights and benefits provided for by this Agreement will terminate as of such date; provided, however, that Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee will be paid (i) any Incentive Compensation award that has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In been earned but that has not yet been paid; (ii) the event of termination unpaid amount of Employee's employment (1) by Successor within twelve (12) months after ’s Annual Base Salary earned through the effective date of such termination; and (iii) a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to a pro rata portion of the target award under the Company’s Incentive Compensation Plan, for the period from the beginning of the period to which such target award pertains through the date of termination. Employee shall also be entitled to continuation of his then-current Annual Base Salary for a period of 24 months following the date of termination (“Severance Period”), subject to all applicable tax withholdings, such payments to be made in equal installments according to the normal payroll practices of the Company during the Severance Amount within 10 business days after the termination of employment; Period. Employee will also be entitled to extended health care benefits (bCOBRA) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level ’s expense and to the extent required Employee is qualified for such benefits as provided by COBRAlaw; and (c) any outstanding options held by Employee provided, however, that remain unvested as of the date of termination Company shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined in Section 280G(b)(i) of the Internal Revenue Code of 1986, as amended (an "Excess Parachute Payment"), then the payments pay to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Company’s portion of employee health care costs under the Company’s group health care plan as if Employee so that no were an active employee of the Company, such amount, along with all other payments to Employee be made concurrently with the salary continuation payments made during the Severance Period for so long as such coverage remains in effect as provided by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as a result of the termination of Employee's employment following a Change of Control or Constructive Terminationlaw.”

Termination Following Change in Control. In (i) Anything contained herein to the contrary notwithstanding, in the event the Executive’s employment hereunder is terminated within six (6) months following a Change in Control (as defined below) by the Company without Cause, or by the Executive for Good Reason, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) his Base Salary as then in effect for a period of one (1) year from the occurrence Date of Constructive Termination within Termination, in installments on the Company’s normal payroll dates over the twelve (12) months after month period following the effective date Date of a Change Termination and continuing on the same day of each succeeding month thereafter plus (b) an amount equal to the Incentive Bonus which would otherwise been payable in Controlaccordance with Section 2.2 hereof for the Employment Year in which the Date of Termination occurs at such time the Incentive Bonus, Employee mayif any, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement would otherwise have been payable in accordance with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, Section 2.2 hereof; or (2ii) by Employee within twelve (12) months after except with regard to the effective date payment of an amount that is a Change of Control as a result of a Constructive TerminationSection 409A Amount, then (a) Successor shall pay Employee the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i)(a); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationCompany without Cause, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, reimbursement for any unpaid and approved expenses incurred pursuant to Section 6.6 through the Termination Date, any accrued but unpaid Base Salary and vacation and, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee the Executives Base Salary as then in effect for a period of eighteen (18) months from the Termination Date, payable in equal installments on the Company’s normal payroll dates for the eighteen (18) month period following the Termination Date; and (b) an amount equal to the Discretionary Bonus which would otherwise been payable in accordance with Section 6.3 hereof for the employment year in which the Termination Date occurs, payable at such time the Discretionary Bonus, if any, would otherwise have been payable in accordance with Section 6.3 hereof; or (ii) except with regard to the payment of any amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In (i) Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve (12) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of ControlCompany without Cause, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationExecutive with Good Reason, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of twenty four (24) months from the Date of Termination, in equal installments on the Company’s normal payroll dates over the twenty four (24) month period following the Date of Termination plus (b) an amount equal to the Incentive Bonus which would otherwise have been payable in accordance with Section 2.2 hereof for the Employment Year in which the Date of Termination occurs at such time the Incentive Bonus, if any, would otherwise have been payable in accordance with Section 2.2 hereof; or (ii) except with regard to the payment of an amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i)(a); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a excess parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. In Anything contained herein to the contrary notwithstanding, in the event of the occurrence of Constructive Termination Executive’s employment hereunder is terminated within twelve six (126) months after the effective date of following a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination shall be effective upon Employee giving notice to Successor. In the event of termination of Employee's employment Control (1as defined below) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive TerminationCompany without Cause, then the Company shall pay to the Executive in complete satisfaction of its obligations under this Agreement, reimbursement for any unpaid and approved expenses incurred pursuant to Section 6.5 through the Termination Date, any accrued but unpaid Base Salary and vacation and, as severance pay and as liquidated damages (because actual damages are difficult to ascertain), an amount equal to (i) (a) Successor shall pay Employee his Base Salary as then in effect for a period of twenty-four months (24) months from the Termination Date, payable in equal installments on the Company’s normal payroll dates for the twenty-four (24) month period following the Termination Date; and (b) an amount equal to the Discretionary Bonus which would otherwise been payable in accordance with Section 6.2 hereof for the employment year in which the Termination Date occurs, payable at such time the Discretionary Bonus, if any, would otherwise have been payable in accordance with Section 6.2 hereof; or (ii) except with regard to the payment of any amount that is a Section 409A Amount, the Company, in its sole discretion, may elect to make a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as present value of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event payments otherwise terminating the options. Notwithstanding the foregoing, due under clause (i); provided that if any severance payment payable after a “Change in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" Control” as defined in Section 280G(b)(i) 280G of the Internal Revenue Code of 19861986 (the “Code”), either alone or together with other payments or benefits, either cash or non-cash, that the Executive has the right to receive from the Company, including, but not limited to, accelerated vesting or payment of any deferred compensation, options, stock appreciation rights or any benefits payable to the Executive under any plan for the benefit of employees, which would constitute an “excess parachute payment” (as amended (an "Excess Parachute Payment"defined in Code Section 280G), then the payments to Employee under this Section 2 such severance payment or other benefit shall be limited to an amount equal reduced to the maximum largest amount that could will not result in receipt by the Executive of a parachute payment. The determination of the amount of the payment described in this subsection shall be paid to Employee so that no such amount, along with all other payments to Employee made by Successor, the Company’s independent auditors at the sole expense of the Company. For purposes of clarification the value of any options described above will be deemed to constitute an Excess Parachute Payment. Subject to determined by the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement as Company’s independent auditors using a result of the termination of Employee's employment following a Change of Control or Constructive TerminationBlack-Scholes valuation methodology.

Termination Following Change in Control. Notwithstanding the provisions of Sections 13(a) and (b) herein to the contrary, in the event that a change in control event (as defined below) occurs and (x) the Executive is terminated by the Company for any reason other than for cause pursuant to Section 11(d) within one year following such change in control (or if this Agreement is not automatically renewed prior to expiration as provided for herein within such one year period), or (y) Executive terminates his employment in accordance with Section 12(a) hereof within one year following such change in control, and any such termination (or nonrenewal) constitutes a Separation from Service, then, and in that event, in lieu of the compensation to which Executive would have been entitled pursuant to Sections 13(a) or (b), the Company shall pay to Executive, on the Termination Date, the following compensation: (i) a lump sum payment equal to two and one-half (2.5) times his gross annual salary; (ii) a payment equal to two and one-half (2.5) times the bonus which Executive would have been eligible to receive for the year in which termination occurs, which amount shall be calculated, in the discretion of the Company, utilizing (x) audited financial statements of the Company for such year or for the four fiscal quarters preceding the Termination Date (in each case as approved by the Audit Committee of the Board of Directors of the Company), or (y) any other methodology that the Company, in good faith, determines to be appropriate, (iii) the Company shall continue the payment of premiums for hospitalization and major medical insurance until the earliest to occur of the two and one-half year anniversary of the Termination Date, the date on which Executive secures full time employment that affords equivalent medical coverage, or the date on which Executive ceases to be entitled to COBRA continuation coverage, and (iv) all outstanding restricted stock, options and other awards with respect to equity interests in the Company and/or its affiliates granted to Executive shall vest fully on such Termination Date; provided, however, that no equity award shall vest to the extent such vesting would cause the award to fail to satisfy the requirements of Code Section 409A. In the event of the occurrence of Constructive Termination within twelve (12that Executive elects to terminate his employment pursuant to paragraph 12(b) months after the effective date of following a Change change in Controlcontrol event, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination this Agreement shall be effective upon Employee giving notice wholly terminated and Executive shall not be entitled to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Controlany further compensation or any other benefits provided for herein, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor and shall pay Employee a lump sum cash payment equal not be entitled to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the optionsseverance pay. Notwithstanding the foregoing, in to accommodate the event that any payments under this Section 2 will time necessary to conclude an audit of the Company’s financial records or as may otherwise be necessary ascertain the amount thereof, compensation payable pursuant to clause (ii) above, shall be deemed paid on the termination date if paid within the same calendar year in which termination of employment occurs or, if later, by the 15th day of the third calendar month following termination of employment; provided, Executive shall not be permitted, directly or indirectly, to constitute designate the taxable year of the payment of such compensation. Change in control event shall be defined to be any one of the following: (i) any merger, consolidation or reorganization in which the Company is not the surviving entity (or survives only as a subsidiary of an "excess parachute payment" entity), (ii) any sale, lease, exchange, or other transfer of (or agreement to sell, lease, exchange, or otherwise transfer) all or substantially all of the assets of the Company to any other person or entity (in one transaction or a series of related transactions), (iii) dissolution or liquidation of the Company, (iv) when any person or entity, including a “group” as defined in contemplated by Section 280G(b)(i13(d)(3) of the Internal Revenue Code Securities Exchange Act of 19861934, as amended amended, acquires or gains ownership or control (an "Excess Parachute Payment"including, without limitation, power to vote) of more than 30% of the outstanding shares of the Company’s voting stock (based upon voting power), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject to the terms of this Section 2, Employee shall not be entitled to receive any other compensation or benefits under this Agreement (v) as a result of or in connection with a contested election of directors, the termination persons who were directors of Employee's employment following the Company before such election shall cease to constitute a Change majority of Control the Board of Directors, or Constructive Termination(vi) any event that is reported by the Company under Item 5.01 of a Form 8-K filed with the Securities and Exchange Commission; provided, however, that the term “change in control event” shall not include any reorganization, merger, consolidation, sale, lease, exchange, or similar transaction involving solely the Company and one or more previously wholly-owned subsidiaries of the Company unless such matter is described in clause (vi) above.

Termination Following Change in Control. In the event the Executive's employment hereunder is terminated without cause at any time within three months after a "Change in Control" (as hereinafter defined), which the Company shall be entitled to do, the Executive shall receive from the Company (in lieu of any rights or claims, other than the possible right to an incentive bonus for the period prior to termination as set forth in Section 6 hereof, that the Executive may have in respect of this Agreement, including without limitation the provisions of Section 11.2 hereof, all of which rights or claims the Executive hereby waives and releases in consideration for the severance payments provided in this Section 11.4) as severance payments, and in consideration of the occurrence Executive's compliance with the provisions of Constructive Termination Section 13 hereof for so long as payments are being made pursuant to this Section 11.4, payment of the Executive's Base Salary and the insurance benefits described in Sections 7.4, 7.6 and 8 hereof, in each case for a period of eighteen months beginning on the date of termination of the Executive's employment; provided, however, that in the event the Executive receives any fees, salary or other compensation of any kind in consideration for providing services as an employee, agent, consultant, independent contractor or otherwise during the last six months of the aforementioned 18-month period (such last six months being hereinafter referred to as the "Mitigation Period"), then the Company shall be obligated with respect to the Executive's Base Salary payments during the Mitigation Period to pay only an amount equal to the excess, if any, of the Executive's Base Salary otherwise payable during such Mitigation Period over the amount of any such fees, salary or other compensation earned or received by the Executive during such period. In addition, the Company's obligation to provide the insurance benefits described in Sections 7.4, 7.6 or 8 hereof during the Mitigation Period shall terminate as to any such insurance at such time as the Executive becomes entitled to comparable insurance coverage from any other employer or entity. Payments of Base Salary shall be made at the same times and in the same manner that such payments would have been made to the Executive if his employment had not been terminated. In addition, if the Executive's employment hereunder is terminated without cause at any time within twelve (12) three months after the effective date of a Change in Control, Employee may, at Employee's option, terminate Employee's employment due to Constructive Termination unless Employee has entered into an employment agreement with Successor. Such termination the Executive shall be effective upon Employee giving notice entitled to Successor. In the event of termination of Employee's employment (1) by Successor within twelve (12) months after the effective date of a Change of Control, or (2) by Employee within twelve (12) months after the effective date of a Change of Control as a result of a Constructive Termination, then (a) Successor shall pay Employee a lump sum cash payment equal to the Severance Amount within 10 business days after the termination of employment; (b) Successor shall make available to Employee, at Employee's cost and expense, medical and other insurance coverage at a level and to the extent required by COBRA; and (c) any outstanding exercise all options held by Employee that remain unvested as of the date of termination shall become fully vested and exercisable as of the date of termination of Employee's employment with Successor and prior to the occurrence of an event otherwise terminating the options. Notwithstanding the foregoing, in the event that any payments under this Section 2 will be deemed to constitute an "excess parachute payment" as defined referenced in Section 280G(b)(i) of the Internal Revenue Code of 19869 hereof which are not then exercisable, as amended (an "Excess Parachute Payment"), then the payments to Employee under this Section 2 shall be limited to an amount equal to the maximum amount that could be paid to Employee so that no such amount, along with all other payments to Employee by Successor, will be deemed to constitute an Excess Parachute Payment. Subject subject to the terms and provisions of the option agreement provided for by the terms of the Plan. For purposes of this Section 211.4, Employee a "Change in Control" shall not be mean the sale of all or substantially all of the Company's assets to, or the acquisition (by purchase, merger, reorganization or otherwise) of shares of the Company's capital stock representing more than 50% of the votes which all stockholders are entitled to receive cast by, any other compensation person or benefits under this Agreement as a result group of affiliated persons not presently affiliated with the termination of Employee's employment following a Change of Control or Constructive TerminationCompany.