Common use of Good Reason; Other than Cause or Disability Clause in Contracts

Good Reason; Other than Cause or Disability. If the Company terminates the Executive’s employment other than for Cause or Disability, or the Executive terminates his employment for Good Reason, or the Company notifies Executive that it will not renew this Agreement under as provided in Section 2, then: (i) within thirty (30) days after the Date of Termination, the Company shall pay the Executive an amount equal to the sum of: (i) his accrued but unpaid Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given (or the Date of Termination where no Notice of Termination is required hereunder) and (ii) a pro rata portion of the most recent Annual Bonus paid to the Executive (taking into consideration any accrued but unpaid Annual Bonus which is paid pursuant to this Section 9(d)(i)) based on the number of days elapsed in the current fiscal year prior to the Date of Termination, together with any accrued incentive compensation and other amounts to which the Executive is then entitled under any plan, policy, practice or program of the Company at the time such payments are due; and (ii) in lieu of any further salary, incentive compensation or other payments for periods subsequent to the Date of Termination, and as a severance benefit to the Executive (the “Severance Benefit”), the Company will pay to the Executive in a prompt lump-sum payment, payable in cash, no later than thirty (30) days following the date of termination. An amount equal to two-hundred ninety-nine (299%) percent of the Executive’s average annual includable compensation (which shall include, without limitation, the Executive’s Base Salary and Annual Bonus) from the Company during the five (5) most recently completed taxable years ending before the Date of Termination (referred to as the “Base Period”). Any partial taxable years during the Base Period shall be annualized, and in the event that the Executive’s employment with the Company is less than five (5) years, the average annual compensation shall be calculated based on the rate of compensation for the Executive’s actual term of employment. (iii) Notwithstanding the Severance Benefit formula set forth in Section 9(d)(ii) hereof and the other provisions of this Agreement, any payments to which the Executive is entitled upon a Date of Termination under Section 9(d)(ii) hereof and the other provisions of this Agreement shall be adjusted so that the aggregate present value of all “parachute payments” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the “Code”) to which the Executive is entitled is less than 300% of the Executive’s “annualized includable compensation for the “base period” as defined in the Code, unless, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, the payment of the full Severance Benefit and other awards pursuant to this Agreement results in the receipt by the Executive on an after-tax basis of the greatest amount of benefit notwithstanding that all or some portion of the payments or awards pursuant to this Agreement including the Severance Benefit, may be taxable under Section 4999 of the Code. The determination as to whether there is any adjustment (and the extent thereof) in the payments or awards due the Executive because of this Section 9(d)(iii) shall be made in writing within thirty (30) days after the Date of Termination, by the Company’s independent certified public accounts on the Date of Termination and shall be final and binding on the Executive and the Company. The Company shall furnish said independent certified public accountants with all data required to make said determination within ten (10) days after the Date of Termination. If there is any such adjustment, the Executive may elect in the Executive’s sole discretion which payments or awards shall be reduced and/or which payments or awards shall be deferred and promptly notify the Company in writing of such election.

Good Reason; Other than Cause or Disability. If the Company terminates the Executive’s employment other than for Cause or Disability, or the Executive terminates his employment for Good Reason, ,or the Company notifies Executive that it will not renew this Agreement under as provided in Section 2, then: (i) within thirty (30) days after the Date of Termination, the Company shall pay the Executive an amount equal to the sum of: (i) his accrued but unpaid Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given (or the Date of Termination where no Notice of Termination is required hereunder) and (ii) a pro rata portion of the most recent Annual Bonus paid to the Executive (taking into consideration any accrued but unpaid Annual Bonus which is paid pursuant to this Section 9(d)(i)) based on the number of days elapsed in the current fiscal year prior to the Date of Termination, together with any accrued incentive compensation and other amounts to which the Executive is then entitled under any plan, policy, practice or program of the Company at the time such payments are due; and (ii) in lieu of any further salary, incentive compensation or other payments for periods subsequent to the Date of Termination, and as a severance benefit to the Executive (the “Severance Benefit”), the Company will pay to the Executive in a prompt lump-sum payment, payable in cash, no later than thirty (30) days following the date of termination. An amount equal to two-hundred ninety-nine (299%) percent of the Executive’s average annual includable compensation (which shall include, without limitation, the Executive’s Base Salary and Annual Bonus) from the Company during the five (5) most recently completed taxable years ending before the Date of Termination (referred to as the “Base Period”). Any partial taxable years during the Base Period shall be annualized, and in the event that the Executive’s employment with the Company is less than five (5) years, the average annual compensation shall be calculated based on the rate of compensation for the Executive’s actual term of employment. (iii) Notwithstanding the Severance Benefit formula set forth in Section 9(d)(ii) hereof and the other provisions of this Agreement, any payments to which the Executive is entitled upon a Date of Termination under Section 9(d)(ii) hereof and the other provisions of this Agreement shall be adjusted so that the aggregate present value of all “parachute payments” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the “Code”) to which the Executive is entitled is less than 300% of the Executive’s “annualized includable compensation for the “base period” as defined in the Code, unless, taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, the payment of the full Severance Benefit and other awards pursuant to this Agreement results in the receipt by the Executive on an after-tax basis of the greatest amount of benefit notwithstanding that all or some portion of the payments or awards pursuant to this Agreement including the Severance Benefit, may be taxable under Section 4999 of the Code. The determination as to whether there is any adjustment (and the extent thereof) in the payments or awards due the Executive because of this Section 9(d)(iii) shall be made in writing within thirty (30) days after the Date of Termination, by the Company’s independent certified public accounts on the Date of Termination and shall be final and binding on the Executive and the Company. The Company shall furnish said independent certified public accountants with all data required to make said determination within ten (10) days after the Date of Termination. If there is any such adjustment, the Executive may elect in the Executive’s sole discretion which payments or awards shall be reduced and/or which payments or awards shall be deferred and promptly notify the Company in writing of such election.