Common use of Change in Control of the Company Clause in Contracts

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this Section 1 hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without CauseCause pursuant to Section 3(a)(iv) or by the Executive for Good Reason pursuant to Section 3(a)(v), in either case during the Change in Control Period, then in lieu of any amounts otherwise payable under this Section 1 4(b) hereof, and subject to the Executive signing on or before the 21st day following Executive’s Separation from Service and not revoking the Release within the 7 calendar days after the date of signing, and the Executive’s continued compliance with Sections 5 and 6, the Executive shall be entitled toreceive, in addition to payments and benefits set forth in Section 3(c), the following: (i) an amount in cash equal to the Accrued Obligationssum of (A) 12 months’ of Executive’s Annual Base Salary and (B) 100% of the Target Bonus, payable on the first regular payday in a lump sum payment within thirty (30) days following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plansSeparation from Service; (ii) an amount equal to 12 multiplied by the Termination Year Bonustotal applicable monthly premium cost for continued group health plan coverage under COBRA for Executive and Executive’s covered dependents under a group health plan sponsored by the Company in which Executive (or such dependents) participated at the time of termination of employment, payable in a lump sum payment within 2-1/2 months after thirty (30) days following the last day Separation from Service based upon the premium for the first month of the applicable Bonus Period in which the Termination Date occursCOBRA; (iii) to the Severance Amountextent unpaid as of the Date of Termination, payable an amount of cash equal to any Annual Bonus earned by Executive for the Company’s fiscal year in which the Date of Termination occurs, as determined by the Board or the Compensation Committee in its sole discretion based upon actual performance achieved, which Annual Bonus, if any, shall be prorated based on the days of the fiscal year prior to and including the Date of Termination, and paid to Executive in a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall payment within the definition of a change in control under Section 409A(a)(2)(A)(vthirty (30) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period days following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the CodeSeparation from Service; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that any accrued Annual Bonus amounts with respect to the vesting year prior to the year in which the Date of any Equity Awards that is based upon satisfaction of any performance criteriaTermination occurs, vesting shall be determined as if to the target goals that relate extent then unpaid, and paid to such criteria had been achievedExecutive in a lump sum payment within thirty (30) days following the Separation from Service; and (v) continuation with respect to any Awards (as defined under the Appgate Plan) that were previously granted to the Executive and remain outstanding immediately prior to the Date of Termination, the following shall apply: (a) any Option (as defined in the Appgate Plan) or Stock Appreciation Right (as defined in the Appgate Plan) that was not previously vested and exercisable as of the health benefits provided time of the Change in Control (as defined in the Appgate Plan) shall become immediately vested and exercisable, subject to applicable restrictions set forth in Section 10(a) of the Appgate Plan; (b) any restrictions, deferral of settlement, and forfeiture conditions applicable to a Restricted Stock Award (as defined in the Appgate Plan), Restricted Stock Unit Award (as defined in the Appgate Plan) or an Other Stock-Based Award (as defined in the Appgate Plan) subject only to future service requirements granted under the Appgate Plan shall lapse and such Awards (as defined in the Appgate Plan) shall be deemed fully vested as of the time of the Change in Control, except to the extent of any waiver by the Executive and his covered dependents subject to the applicable restrictions set forth in Section 10(a) of the Plan; and (c) with respect to any outstanding Award subject to achievement of performance goals and conditions under the Company health plans Appgate Plan, all performance goals and conditions and other vesting criteria will be deemed achieved as of the time of the Change in effect from time to time after the Termination Date Control at the same cost applicable to active employees until the earlier of: (A) the expiration greater of the one (1) year period following the Termination Date, one hundred percent (100%) of target levels and all other conditions met or (B2) actual performance results with respect to such performance goals and conditions, subject to applicable restrictions set forth in Section 10(a) of the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRAAppgate Plan.

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without CauseCause during (x) the 6-month period preceding the date of the Change in Control or (y) the two (2) year period immediately following the Change in Control, then in lieu of any amounts otherwise payable under this Section 1 6(e) or 6(f) hereof, the Executive shall be entitled to: (i) the The Accrued Obligations, payable on as and when those amounts would have been payable had the first regular payday following the Termination Date, or in the case Term of any benefits payable under any employee benefit plans, on the date on which they are payable under those plansEmployment not ended; (ii) the The Termination Year Bonus, payable within 2-2 1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the The Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition later of a change in control under Section 409A(a)(2)(A)(vten (10) business days after the Termination Date or the expiration of the Code, then if and to seven (7) day revocation period for the extent necessary to comply with general release described in Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code;6(j); and (iv) full and immediate vesting of all outstanding Equity Awards held by Continuation, at the Executive on the Termination Date; providedCompany’s expense, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents dependants under the Company health plans as in effect from time to time after the Termination Date date of such termination at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination DateSeverance Term, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA. In the event that the Company is unable to provide the Executive and his covered dependents with any health benefits required pursuant to this Section 6(i)(iv), then the Company shall pay the Executive cash equal to the value of the benefit that otherwise would have accrued for the Executive’s benefit under the plan, for the period during which such benefits could not be provided under the plans, said cash payments to be made monthly until such time as the benefits would otherwise terminate pursuant to this Section 6(i)(iv); and (v) Vesting, immediately prior to such termination, in any Equity Awards that have not previously vested.

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without CauseCause or by the Executive for Good Reason during the six (6) month period immediately following the Change in Control of the Company, then in lieu of any amounts otherwise payable under this Section 1 Sections 6(e) or 6(f) hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday as soon as reasonably practicable following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 four (4) months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, equal monthly installments during the Severance Amount shall be payable in equal installments consistent Period commencing with the Company’s normal payroll schedule during the two (2) year period first calendar month immediately following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A month in which the employment of the CodeExecutive has been terminated; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents dependants under the Company health plans as in effect from time to time after the Termination Date at date of such termination with the same cost applicable to active employees Company paying all premiums until the earlier of: (A) the expiration of the one eighteen (118) year period months following the Termination Date, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA; and (v) all Options granted to Executive as described in Exhibit B hereto and any other options granted to Executive to purchase the Company’s common stock prior to after the date of this Agreement shall immediately vest and be exercisable for a period of nine (9) months from the date of the termination; provided, however, such period of nine (9) months shall not exceed the earlier of the latest date upon which such options could have expired by their original terms under any circumstances or the tenth anniversary of the original date of grant of such options.

Change in Control of the Company. IfIf the Executive’s employment is terminated by the Company (or any entity to which the obligations and benefits under this Agreement have been assigned, pursuant to Section 10) without Cause or by the Executive for Good Reason during the one (1) year period commencing on immediately following the date of a Change in Control, the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this Section 1 6 hereof, the Executive shall be entitled toto the following: (i) the The Accrued Obligations, payable on as and when those amounts would have been payable had the first regular payday following the Termination Date, or in the case Term of any benefits payable under any employee benefit plans, on the date on which they are payable under those plansEmployment not ended; (ii) the The Termination Year Bonus, payable within 2-2 1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) A lump-sum payment equal to the Change in Control Severance Amount, payable as a lump sum at on the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(vsixty-first (61st) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period day immediately following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by Provided that the Executive on timely elects continued coverage under COBRA, health and dental coverage for the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under may be continued during the Severance Term, in accordance with the terms of the applicable Company health plans as in effect from time to time after time. The Company will reimburse the Termination Date at Executive for the same monthly COBRA cost applicable of continued health and dental coverage paid by the Executive under the health and dental plans of the Company, less the amount that the Executive would be required to contribute for health and dental coverage if the Executive were an active employees until employee of the Company; provided that such reimbursements shall not continue beyond the earlier of: (A) the expiration of the one two (12) year period following the Termination Datedate on which the Term of Employment ends, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits; and (v) Vesting, immediately prior to such termination, in any Equity Awards that have not previously vested. Notwithstanding the Company may require foregoing, in this Section 6(i), if a Change in Control does not meet the Executive requirements of a “change in control event” under Section 409A of the Code, then the amounts to elect to continue his health insurance pursuant to COBRAbe paid under this Section 6(i) will be paid in the forms set forth in Section 6(e).

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, any reason or the Executive’s Continuous Service is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this Section 1 hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two three (23) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.

Change in Control of the Company. If, (a) In the event that: (i) a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment; and (ii) either: (A) prior to the earlier of the Expiration Date and one (1) year period commencing on after the date of a the Change in Control, either: (1) the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account Term of the Executive’s death or Disability, or the Executive’s Continuous Service Employment is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this pursuant to Section 1 hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, 5.4 hereof or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on terminates the Termination Date; provided, however, that with respect to the vesting Term of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined Employment for Good Reason as if the target goals that relate to such criteria had been achieved; and (vdefined in Section 5.5(d) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Datehereof, or (B) the Executive terminates the Term of Employment for any reason within 30 days after the Change in Control occurs, the Company shall: (i) pay to the Executive any unpaid Base Salary through the effective date of termination; (ii) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any year prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive; (iii) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 3.2 hereof; and (iv) pay to the Executive as a single lump sum payment, within 30 days of the termination of the Term of Employment, equal to the sum of (x) ten (10) times the sum of the Executive’s annual Base Salary, Incentive Compensation, and the value of the annual fringe benefits (based upon their cost to the Company) required to be provided to the Executive under Sections 4.2 and 4.4 hereof, for the fiscal year immediately preceding the year in which the Term of Employment terminates, plus (y) the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under those plans by reason of the termination of his employment hereunder. Notwithstanding any other provision herein, the Executive’s right to receive any severance benefits pursuant to this Section 5.6 shall be subject to his execution and delivery to the Company of a general release of claims in substantially the form attached hereto as Exhibit A (with such changes as may be reasonably required to such form to help ensure its enforceability in light of any changes in applicable law) not more than twenty-one (21) days (forty-five (45) days if required under applicable law) after the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who Company provides the final form of release to the Executive may be employed (and the Executive’s not revoking such release within any revocation period provided under applicable law). The Company shall provide the final form of release agreement to the Executive not later than seven (7) days following the Termination Date; provideddate of the termination date. Upon any termination effected and compensated pursuant to this Section 5.6(a), the Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, that as a condition to the provisions of continuation Section 4.1 hereof). (b) For purposes of such benefitsthis Agreement, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.term “Change in Control” shall mean:

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, any reason or the Executive’s Continuous Service is terminated by the Company without Cause, and, the Executive did not vote any securities of the Company or Schottenstein Realty LP that are directly or indirectly owned or controlled by the Executive in favor of the Change in Control (if and to the extent the event constituting a Change in Control was subject to a vote of the security holders of the Company and/or Schottenstein Realty LP), then in lieu of any amounts otherwise payable under this Section 1 hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without CauseCause during (x) the 6-month period preceding the date of the Change in Control or (y) the two (2) year period immediately following the Change in Control, then in lieu of any amounts otherwise payable under this Section 1 6(e) or 6(f) hereof, the Executive shall be entitled to: (i) the The Accrued Obligations, payable on as and when those amounts would have been payable had the first regular payday following the Termination Date, or in the case Term of any benefits payable under any employee benefit plans, on the date on which they are payable under those plansEmployment not ended; (ii) the Termination Year BonusThe Severance Amount, payable within 2-1/2 months the later of ten (10) business days after the last day of the applicable Bonus Period in which the Termination Date occursor the expiration of the seven (7) day revocation period for the general release described in Section 6(j); (iii) the Severance AmountContinuation, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Dateexpense, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his her covered dependents dependants under the Company health plans as in effect from time to time after the Termination Date date of such termination at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination DateSeverance Term, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his her health insurance pursuant to COBRA. In the event that the Company is unable to provide the Executive and her covered dependents with any health benefits required pursuant to this Section 6(i)(iii), then the Company shall pay the Executive cash equal to the value of the benefit that otherwise would have accrued for the Executive’s benefit under the plan, for the period during which such benefits could not be provided under the plans, said cash payments to be made monthly until such time as the benefits would otherwise terminate pursuant to this Section 6(i)(iii); and (iv) Vesting, immediately prior to such termination, in any Equity Awards that have not previously vested.

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this Section 1 hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two one (21) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.

Change in Control of the Company. If, (a) In the event that: (i) a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment; and (ii) either: (A) prior to the earlier of the Expiration Date and one (1) year period commencing on after the date of a the Change in Control, either: (1) the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account Term of the Executive’s death or Disability, or the Executive’s Continuous Service Employment is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this pursuant to Section 1 hereof, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, 5.4 hereof or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on terminates the Termination Date; provided, however, that with respect to the vesting Term of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined Employment for Good Reason as if the target goals that relate to such criteria had been achieved; and (vdefined in Section 5.5(d) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Datehereof, or (B) the Executive terminates the Term of Employment for any reason within 30 days after the Change in Control occurs, the Company shall: (i) pay to the Executive any unpaid Base Salary through the effective date of termination; (ii) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any year prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive; (iii) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 3.2 hereof; and (iv) pay to the Executive as a single lump sum payment, within 30 days of the termination of the Term of Employment, equal to the sum of (x) two (2) times the sum of the Executive's annual Base Salary, Incentive Compensation, and the value of the annual fringe benefits (based upon their cost to the Company) required to be provided to the Executive under Sections 4.2 and 4.4 hereof, for the fiscal year immediately preceding the year in which the Term of Employment terminates, plus (y) the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under those plans by reason of the termination of his employment hereunder. Notwithstanding any other provision herein, the Executive’s right to receive any severance benefits pursuant to this Section 5.6 shall be subject to his execution and delivery to the Company of a general release of claims in substantially the form attached hereto as Exhibit A (with such changes as may be reasonably required to such form to help ensure its enforceability in light of any changes in applicable law) not more than twenty-one (21) days (forty-five (45) days if required under applicable law) after the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who Company provides the final form of release to the Executive may be employed (and the Executive’s not revoking such release within any revocation period provided under applicable law). The Company shall provide the final form of release agreement to the Executive not later than seven (7) days following the Termination Date; provideddate of the termination date. Upon any termination effected and compensated pursuant to this Section 5.6(a), the Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, that as a condition to the provisions of continuation Section 4.1 hereof). (b) For purposes of such benefitsthis Agreement, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.term "Change in Control" shall mean:

Change in Control of the Company. IfIf (i) there is a sale, acquisition, merger, or buyout of the Company to an unaffiliated person, or any person that is not an “affiliate” (as such term is defined under the Securities Exchange Act of 1934) of the Company or any of its shareholders on the Agreement Date becomes the legal and beneficial owner of more than 50% of the Company’s common stock (a “Change in Control”), and (ii) immediately prior to or within 12 months after such Change in Control, the Employee voluntarily terminates employment under Section 3(a)(iii) in circumstances where there has been a significant reduction in the authority, responsibilities, position or compensation of Employee or Employee has been required to move the location of his principal residence a distance of more than 35 miles, and the Company has failed to remedy such situation within 30 days after receipt of Employee’s written notice thereof, then in lieu of the severance payments, if any, otherwise payable to the Employee under Section 3 of the Agreement, Employee will be entitled to the following severance: (a) Two times Annual Base Salary payable in 24 monthly installments beginning on the first day following the six-month anniversary of the Employee’s termination date; plus a lump sum payment equal to the amount of any earned but unpaid bonus plus the average of the previous 3 years bonus payment, inclusive of deferred amounts, if any (or, if Employee has not been employed for three years, the average of the bonus payments, inclusive of deferred amounts, during the one (1) year period commencing Term of Employment), which lump sum shall be paid to Employee on the first day following the six-month anniversary of the Employee’s termination date. Notwithstanding the foregoing, the Board of Directors may authorize that portion of the foregoing payments under this paragraph 4(a) that qualify as a 409A Exempt Payment (as defined in section 3(a)(ii)) to be paid in a single lump sum to the Employee on the first payroll date following the Employee’s termination date; and the remaining Annual Base Salary amounts to be paid to the Employee in 24 equal installments beginning on the six-month anniversary of the Employee’s termination date and ending on the second anniversary of the Employee’s termination date, or until new employment begins, whichever occurs first; and the remaining bonus amount, if any, to be paid in a single lump sum on the six-month anniversary of the Employee’s termination date. Salary continuation shall terminate if and when Employee begins new employment during the period of salary continuation. (b) Health and welfare benefits shall be fully paid by the Company and run concurrently with salary continuation (but if such continued health benefits are taxable to the Employee, then such continued health benefits shall continue only during the period during which the Employee would have been eligible to continue such coverage under the Company’s health plan in accordance with section 4980B of the Code (“COBRA”), had the Employee elected such coverage and paid the applicable premium), without any gap in coverage. Upon the occurrence of a Change in Control, all stock options owned by Employee shall become fully vested and exercisable. As a condition to receiving the Executive’s Continuous Service is terminated by the Executive for Good Reasonpayments described in clause (a) above, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service is terminated by Employee shall be required to execute and deliver to the Company without Causea general release in customary and agreed form, then in lieu of provided that if Employee fails to sign the release, Employee shall not be entitled to any amounts otherwise payable severance payments or benefits under this Section 1 hereof4; and provided further, the Executive shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, if any severance payments or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and subject to the extent necessary to comply with Section 409A of the Code, Employee shall only be entitled to any such severance payments or benefits if such release has been executed, is effective and the Severance Amount shall be payable in equal installments consistent with applicable revocation period has expired no later than the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of which such payment of the Code; (iv) full severance or benefits are otherwise to commence and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; providedif such requirements are not satisfied, however, that with respect Employee shall not be entitled to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation portion of the health severance payments or benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRAthereafter.

Change in Control of the Company. If, during the one (1a) year period commencing on the date of If a Change in Control, Control of the Company occurs prior to the end of the Employment Period and (a) Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without Causefor reasons other than death, then Disability or Cause or (b) the Executive terminates employment with the Company for Good Reason, then, the Company, or any successor thereto, will pay to the Executive in lieu cash, (i) any accrued but unpaid salary and accrued but unused vacation due to Executive’s termination, (ii) reimbursement of expenses incurred but unpaid prior to Executive’s termination, (iii) a cash payment equal to 300% of salary, payable in equal installments over a 12 month period in accordance with the Company’s usual and customary payroll practices, (iv) a cash payment equal to 300% of Executive’s average Annual Bonus for the three years immediately preceding the year of the termination payable in equal installments over a 12 month period in accordance with the Company’s usual and customary payroll practices, (v) vesting of any amounts restricted stock, stock option or other equity awards Executive then continues to hold, to the extent unvested, including any performance awards at target, (vi) for a period of one year after termination, such health benefits under the Company’s health plans and programs applicable to senior executives of the Company generally as Executive would have received and at such costs to Executive as would have applied in the absence of such termination, provided that the Company shall in no event be required to provide any benefits otherwise required herein after such time as Executive becomes entitled to receive benefits from another employer or recipient of Executive’s services and (vii) a prorated Annual Bonus at “target” level for the year in which Executive’s employment is terminated payable under this in a single lump sum. Subject to Section 1 18(d) hereof, the payments under clauses (iii), (iv) and (vii) hereof shall be paid or commence on the 60th day following the date of termination of employment subject to the execution, delivery and nonrevocation of a release. (b) Notwithstanding any other provision of this Agreement, in the event that the Company or Executive determines, based upon the advice of its tax advisors, (i) that part or all of the consideration, compensation or benefits to be paid to Executive under Section 6(a) or any other provision hereof constitute payments “contingent on a change in ownership or control” of the Company within the meaning of the Treasury Regulations under Section 280G(b)(2) (or a successor provision) of the Internal Revenue Code of 1986, as amended (“parachute payments”), and (ii) that the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to Executive under any other plan, arrangement or agreement which constitute parachute payments (collectively, the “Parachute Amount”), exceeds 2.99 times the Executive’s “base amount” as defined in Section 280G(b)(3) of the Code (the “Executive Base Amount”), then the amounts constituting parachute payments which would otherwise be payable to or for the benefit of Executive shall be entitled to: reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Executive Base Amount (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance “Reduced Amount, payable as a lump sum at the earliest time permitted under Section 2”); provided, however, that the Company shall pay to Executive the Parachute Amount without reduction if it is determined that payment of the Change in Control does not fall within Parachute Amount would generate more after−tax income to Executive than the definition Reduced Amount. In the event of a change in control under Section 409A(a)(2)(A)(v) reduction of the Codepayments that would otherwise be paid to Executive, then if the Company may elect which and to the extent necessary to comply with Section 409A how much of the Code, the Severance Amount any particular entitlement shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, eliminated or on reduced and shall notify Executive promptly of such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Dateelection; provided, howeverhowever that the aggregate reduction shall be no more than as set forth in the preceding sentence of this Section 6(b). (c) For purposes of this Agreement, that with respect to a “Change in Control” shall mean the vesting occurrence of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under following events at any time during the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA.Employment Period:

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service employment is terminated by the Company (or any entity to which the obligations and benefits under this Agreement have been assigned, pursuant to Section 10) without Cause or by the Executive for Good Reason, or on account of Reason during the Executive’s death or Disability, or two (2) year period immediately following the Executive’s Continuous Service is terminated by the Company without CauseChange in Control, then in lieu of any amounts otherwise payable under this Section 1 6 hereof, the Executive shall be entitled toto the following: (i) the The Accrued Obligations, payable on as and when those amounts would have been payable had the first regular payday following the Termination Date, or in the case Term of any benefits payable under any employee benefit plans, on the date on which they are payable under those plansEmployment not ended; (ii) the The Termination Year Bonus, payable within 2-2 1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) A lump-sum payment equal to the Change in Control Severance Amount, payable as a lump sum at on the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(vsixty-first (61st) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period day immediately following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by Provided that the Executive on timely elects continued coverage under COBRA, health and dental coverage for the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under may be continued during the Severance Term, in accordance with the terms of the applicable Company health plans as in effect from time to time after time. The Company will reimburse the Termination Date at Executive for the same monthly COBRA cost applicable of continued health and dental coverage paid by the Executive under the health and dental plans of the Company, less the amount that the Executive would be required to contribute for health and dental coverage if the Executive were an active employees until employee of the Company; provided that such reimbursements shall not continue beyond the earlier of: (A) the expiration of the one two (12) year period following the Termination Datedate on which the Term of Employment ends, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits; and (v) Vesting, immediately prior to such termination, in any Equity Awards that have not previously vested. Notwithstanding the Company may require foregoing, in this Section 6(i), if a Change in Control does not meet the Executive requirements of a “change in control event” under Section 409A of the Code, then the amounts to elect to continue his health insurance pursuant to COBRAbe paid under this Section 6(i) will be paid in the forms set forth in Section 6(e).

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without CauseCause or by the Executive for Good Reason during the six (6) month period immediately following the Change in Control of the Company, then in lieu of any amounts otherwise payable under this Section 1 Sections 6(e) or 6(f) hereof, the Executive shall be entitled to: (i) : the Accrued Obligations, payable on the first regular payday as soon as reasonably practicable following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) ; the Termination Year Bonus, payable within 2-1/2 four (4) months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) ; the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if and to the extent necessary to comply with Section 409A of the Code, equal monthly installments during the Severance Amount shall be payable in equal installments consistent Period commencing with the Company’s normal payroll schedule during the two (2) year period first calendar month immediately following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A month in which the employment of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Datehas been terminated; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents dependants under the Company health plans as in effect from time to time after the Termination Date at date of such termination with the same cost applicable to active employees Company paying all premiums until the earlier of: (A) the expiration of the one eighteen (118) year period months following the Termination Date, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA; and all Options granted to Executive to purchase the Company’s common stock prior to or after the date of this Agreement shall immediately vest and be exercisable for a period of nine (9) months from the date of the termination; provided, however, such period of nine (9) months shall not exceed the earlier of the latest date upon which such options could have expired by their original terms under any circumstances or the tenth anniversary of the original date of grant of such options. Section 280G Additional Payments by the Company. Anything in this Agreement to the contrary notwithstanding, in the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of any plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) or any person affiliated with the Company or such person) as a result of such change in ownership or effective control (collectively, the “Company Payments”), and such Company Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), the Company shall pay to the Executive at the time specified in clause (iv) hereof an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and local income or payroll tax upon the Gross-Up Payment provided for by this clause (i), but before deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payment. For purposes of determining whether any of the Company Payments and Gross-Up Payment (collectively, the “Total Payments”) will be subject to the Excise Tax and the amount of such Excise Tax, (A) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants or the Company (the “Accountants”) such Total Payments (in whole or in part): (1) do not constitute “parachute payments,” (2) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or (3) are otherwise not subject to the Excise Tax, and (B) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. In the event that the Accountants are serving as accountants or auditors for the individual, entity or group effecting the change in control (within the meaning of Section 280G of the Code), the Executive may appoint another nationally recognized accounting firm to make the determinations hereunder (which accounting firm shall then be referred to as the “Accountants” hereunder). All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants shall be final and binding upon the Company and the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence for the calendar year in which the Company Payments are to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountants or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount of such excess is finally determined. The Gross-Up Payment or portion thereof provided for in clause (iii) shall be paid not later than the thirtieth (30th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to clause (iii), as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to clauses (iii) and (viii) hereof, in the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).

Change in Control of the Company. IfIf (i) there is a sale, acquisition, merger, or buyout of the Company to an unaffiliated person, or any person that is not an “affiliate” (as such term is defined under the Securities Exchange Act of 1934) of the Company or any of its shareholders on the Agreement Date becomes the legal and beneficial owner of more than 50% of the Company’s common stock (a “Change in Control”), and (ii) immediately prior to or within 12 months after such Change in Control, the Employee voluntarily terminates employment under Section 3(a)(iii) in circumstances where there has been a significant reduction in the authority, responsibilities, position or compensation of Employee or Employee has been required to move the location of his principal residence a distance of more than 35 miles, and the Company has failed to remedy such situation within 30 days after receipt of Employee’s written notice thereof, then in lieu of the severance payments, if any, otherwise payable to the Employee under Section 3 of the Agreement, Employee will be entitled to the following severance: (a) Two times Annual Base Salary payable in 24 monthly installments beginning on the first day following the six-month anniversary of the Employee’s termination date; plus a lump sum payment equal to the amount of any earned but unpaid bonus plus the average of the previous 3 years bonus payment, inclusive of deferred amounts, if any, which lump sum shall be paid to Employee on the first day following the six-month anniversary of the Employee’s termination date. Notwithstanding the foregoing, the Board of Directors may authorize that portion of the foregoing payments under this paragraph 4(a) that qualify as a 409A Exempt Payment (as defined in section 3(a)(ii)) to be paid in a single lump sum to the Employee on the first payroll date following the Employee’s termination date; and the remaining Annual Base Salary amounts to be paid to the Employee in 24 equal installments beginning on the six-month anniversary of the Employee’s termination date and ending on the second anniversary of the Employee’s termination date, or until new employment begins, whichever occurs first; and the remaining bonus amount, if any, to be paid in a single lump sum on the six-month anniversary of the Employee’s termination date. Salary continuation shall terminate if and when Employee begins new employment during the one period of salary continuation. (1b) year Health and welfare benefits shall be fully paid by the Company and run concurrently with salary continuation (but if such continued health benefits are taxable to the Employee, then such continued health benefits shall continue only during the period commencing on during which the date Employee would have been eligible to continue such coverage under the Company’s health plan in accordance with section 4980B of the Code (“COBRA”), had the Employee elected such coverage and paid the applicable premium), without any gap in coverage. Upon the occurrence of a Change in Control, the Executive’s Continuous Service is terminated all stock options owned by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service is terminated by the Company without Cause, then in lieu of any amounts otherwise payable under this Section 1 hereof, the Executive Employee shall be entitled to: (i) the Accrued Obligations, payable on the first regular payday following the Termination Date, or in the case of any benefits payable under any employee benefit plans, on the date on which they are payable under those plans; (ii) the Termination Year Bonus, payable within 2-1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition of a change in control under Section 409A(a)(2)(A)(v) of the Code, then if become fully vested and to the extent necessary to comply with Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code; (iv) full and immediate vesting of all outstanding Equity Awards held by the Executive on the Termination Date; provided, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in effect from time to time after the Termination Date at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination Date, or (B) the date the Executive is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Date; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRAexercisable.

Change in Control of the Company. If, during the one (1) year period commencing on the date of a Change in Control, If the Executive’s Continuous Service is terminated by the Executive for Good Reason, or on account of the Executive’s death or Disability, or the Executive’s Continuous Service employment is terminated by the Company without CauseCause or by the Executive during (x) the 6-month period preceding the date of the Change in Control or (y) the two (2) year period immediately following the Change in Control, then in lieu of any amounts otherwise payable under this Section 1 6(e) or 6(f) hereof, the Executive shall be entitled to: (i) the The Accrued Obligations, payable on as and when those amounts would have been payable had the first regular payday following the Termination Date, or in the case Term of any benefits payable under any employee benefit plans, on the date on which they are payable under those plansEmployment not ended; (ii) the The Termination Year Bonus, payable within 2-2 1/2 months after the last day of the applicable Bonus Period in which the Termination Date occurs; (iii) the The Severance Amount, payable as a lump sum at the earliest time permitted under Section 2; provided, however, that if the Change in Control does not fall within the definition later of a change in control under Section 409A(a)(2)(A)(vten (10) business days after the Termination Date or the expiration of the Code, then if and to seven (7) day revocation period for the extent necessary to comply with general release described in Section 409A of the Code, the Severance Amount shall be payable in equal installments consistent with the Company’s normal payroll schedule during the two (2) year period following the Termination Date, or on such earlier date as shall be permissible without violating Section 409A of the Code;6(j); and (iv) full and immediate vesting of all outstanding Equity Awards held by Continuation, at the Executive on the Termination Date; providedCompany’s expense, however, that with respect to the vesting of any Equity Awards that is based upon satisfaction of any performance criteria, vesting shall be determined as if the target goals that relate to such criteria had been achieved; and (v) continuation of the health benefits provided to Executive and his covered dependents dependants under the Company health plans as in effect from time to time after the Termination Date date of such termination at the same cost applicable to active employees until the earlier of: (A) the expiration of the one (1) year period following the Termination DateSeverance Term, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits under a plan maintained by any employer with who the Executive may be employed following the Termination Datebenefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA. In the event that the Company is unable to provide the Executive and his covered dependents with any health benefits required pursuant to this Section 6(i)(iv), then the Company shall pay the Executive cash equal to the value of the benefit that otherwise would have accrued for the Executive’s benefit under the plan, for the period during which such benefits could not be provided under the plans, said cash payments to be made monthly until such time as the benefits would otherwise terminate pursuant to this Section 6(i)(iv); and (v) Vesting, immediately prior to such termination, in any Equity Awards that have not previously vested.