Common use of Amendment to Section 4.5 Clause in Contracts

Amendment to Section 4.5. Section 4.5 of the Employment Agreement is hereby amended and restated as follows: The Executive’s employment pursuant to this Agreement may be terminated by the Company upon thirty (30) days’ prior written notice without Cause by delivery of a Notice of Termination to the Executive. In the event that the Executive’s employment is terminated pursuant to this Section 4.5 during the Term, the Executive shall be entitled to receive: (i) Base Salary to be provided to the Executive under this Agreement through the second anniversary of the Date of Termination, payable in a lump sum within sixty (60) days following the Executive’s Date of Termination; (ii) an amount equal to two (2) times the Executive’s target cash bonus opportunity for such year multiplied by the average of the bonus percentage applied to other executive officers’ target cash bonuses for the prior three (3) fiscal years pursuant to any cash bonus plan maintained by the Company in respect of the fiscal years preceding the Date of Termination, payable in a lump sum within sixty (60) days following the Executive’s Date of Termination; (iii) in lieu of any benefits continuation following Termination, the Company shall pay a lump sum payment, in cash, equal to the estimated cost of procuring for the Executive and his dependents life, disability, accident and health insurance benefits for a period of two (2) years following the Date of Termination, payable in a lump sum within sixty (60) days following the Executive’s Date of Termination; and (iv) any other unpaid benefits to which the Executive is otherwise entitled under any other plan, policy or program of the Company applicable to the Executive as of the Date of Termination, in accordance with the terms of such plan, policy or program. In addition, subject to the last sentence of this Section 4.5, the vesting of all then outstanding options to acquire stock of the Company and all then outstanding restricted shares of stock and restricted stock units of the Company held by the Executive and scheduled to vest during the twelve (12)‑month period following the Date of Termination shall be accelerated, and any such options shall remain exercisable until the earlier of (x) the second (2nd) anniversary of the Date of Termination and (y) the otherwise applicable normal expiration date of such option (these rights together with the payments and benefits enumerated in subsections (i) through (iv) of the preceding sentence shall be referred to as the “Severance Payments”). The foregoing provision shall not apply to extend the expiration date of any option that is outstanding (whether vested or unvested) as of the date hereof and that is intended to qualify as an “incentive stock option” under Section 422 of the Code. For the avoidance of doubt, settlement of any restricted stock units, the vesting of which is accelerated pursuant to this Agreement, shall occur upon vesting pursuant to this Section 4.5, subject to any previous legally binding deferral election or contrary payment date provided for in the applicable award agreement regarding such units or other delay required by Section 409A of the Code. As conditions precedent to receiving the Severance Payments contemplated by this Section 4.5, (a) the Executive agrees to sign, at the time of termination of his employment, a customary release of claims in favor of the Company, its directors and officers and (b) all applicable revocation periods shall have ended prior to the scheduled receipt of any Severance Payment. Anything to the contrary herein notwithstanding, the vesting of any performance share units or performance-based restricted stock or performance-based restricted stock unit awards shall vest according to the terms of the applicable award agreement.