Common use of Termination in Connection with a Change of Control Clause in Contracts

Termination in Connection with a Change of Control. (a) In the event of a "Change in Control" of the Company (as defined herein), and in the event that either in contemplation of such Change of Control or after such Change of Control, Executive's employment is terminated without cause, in addition to any payments to which Executive may be entitled pursuant to Section 4.1, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greater. In the event Executive voluntarily terminates his employment with the Company within six months of a Change of Control, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth times the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greater. In addition, in either case, notwithstanding the provisions of any stock option agreement, all stock options held by the Executive shall vest upon such Change of Control. (b) For purposes of this Section 4.4, a "Change in Control" of the Company shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company, who is not a "beneficial owner" (as defined in Rule 13d-3 under said Act), of 5% or more of the Company's common stock as of the date of this agreement becomes the beneficial owner, directly or indirectly, of capital stock of the Company representing 40 percent or more of the total voting power represented by the Company's then outstanding capital stock, or (ii) the shareholders of the Company approve (x) a merger or consolidation of the Company with any other company, other than a merger or consolidation in which the shareholders of the Company would own 50% or more of the voting stock of the surviving corporation, (y) the sale of all of substantially all of the assets of the Company, or (z) the liquidation or dissolution of the Company. (c) Anything in this Agreement to the contrary notwithstanding, prior to the payment of any compensation or benefits payable under paragraph (a) of this Section 4.4 hereof, the certified public accountants of the Company immediately prior to a Change of Control (the "Certified Public Accountants") shall determine as promptly as practical and in any event with 20 business days following the sale of the Company whether any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other agreements or otherwise) (a "Payment") would more likely than not be nondeductible by the Company for Federal income tax purposes because of section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and if it is, then the aggregate present value of amounts payable or distributable to or for the benefit of the Company pursuant to this Agreement (such payments or distributions pursuant to this Agreement are thereinafter referred to as "Contract Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section, the "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Contract Payments without causing any payment to be nondeductible by the Company because of said Section 280G of the Code. If under the Section the certified Public Accountants determine that any payment would more likely than not be nondeductible by the Company because of Section 280G of the Code, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in his sole discretion, which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments or any other payments equals the Reduced Amount), and shall advise the Company in writing of his election within 20 business days of his receipt of notice. If no such election is made by Executive within such 20-day period, the Company may elect which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the Aggregate present value of the Contract Payments equals the Reduced Amount) and shall notify Executive promptly of such election. For purposes of this Section, present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Certified Public Accountants shall be binding upon the Company and Executive and the payment to Executive shall be made within 20 days of sale of the Company. The Company may suspend for a period of up to 30 days after the sale of the Company the Payment and any other payments or benefits due to Executive until the Certified Public Accountants finish the determination and Executive (or the Company, as the case may be) elects how to reduce the Contract Payments or any other payments, if necessary. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to our distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreement.

Termination in Connection with a Change of Control. If the Employee’s employment terminates as a result of Involuntary Termination at any time during the period commencing two (a2) In the event of a "Change in Control" of the Company (as defined herein), and in the event that either in contemplation of such Change of Control or after such Change of Control, Executive's employment is terminated without cause, in addition to any payments to which Executive may be entitled pursuant to Section 4.1, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greater. In the event Executive voluntarily terminates his employment with the Company within six months of a Change of Control, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth times the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greater. In addition, in either case, notwithstanding the provisions of any stock option agreement, all stock options held by the Executive shall vest upon such Change of Control. (b) For purposes of this Section 4.4, a "Change in Control" of the Company shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company, who is not a "beneficial owner" (as defined in Rule 13d-3 under said Act), of 5% or more of the Company's common stock as of the date of this agreement becomes the beneficial owner, directly or indirectly, of capital stock of the Company representing 40 percent or more of the total voting power represented by the Company's then outstanding capital stock, or (ii) the shareholders of the Company approve (x) a merger or consolidation of the Company with any other company, other than a merger or consolidation in which the shareholders of the Company would own 50% or more of the voting stock of the surviving corporation, (y) the sale of all of substantially all of the assets of the Company, or (z) the liquidation or dissolution of the Company. (c) Anything in this Agreement to the contrary notwithstanding, prior to the payment of any compensation or benefits payable under paragraph (a) of this Section 4.4 hereof, the certified public accountants of the Company immediately prior to a Change of Control and ending eighteen (18) months following a Change of Control, then immediately after the "Certified Public Accountants"later of (i) shall determine as promptly as practical five (5) business days after the Employee’s last date of employment with the Company and in any event with 20 business (ii) seven (7) calendar days after the execution and delivery of the Mutual Separation and Release Agreement (such execution and delivery to occur no later than thirty (30) days following the sale Employee’s last date of employment with the Company), 100% of the Company whether unvested portion of any payment stock option, restricted stock or distribution any other compensatory stock award granted to the Employee by the Company to and then held by the Employee (except for any stock option, restricted stock or for other compensatory stock award which by the benefit express terms of Executive (whether paid the grant or payable or distributed or distributable pursuant to by express designation by the terms Board are expressly excluded from the effect of this Agreement) shall automatically be accelerated in full so as to become immediately and completely vested and no longer subject to any contractual restrictions. In addition to such vesting acceleration, any other agreements or otherwiseon the date that such acceleration occurs, the Employee shall receive the following payments and benefits: (i) (a "Payment") would more likely than not be nondeductible A lump sum cash payment equal to the Employee’s then current annual base salary and target annual bonus multiplied by the Company for Federal income tax purposes because of section 280G of the Internal Revenue Code of 1986, as amended factor specified below (the "Code") and if it is, then the aggregate present value of amounts payable or distributable to or for the benefit of the Company pursuant to this Agreement (such payments or distributions pursuant to this Agreement are thereinafter referred to as "Contract Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section, the "Reduced Amount" shall be without taking into account any reduction in base salary which could trigger an amount expressed in present value which maximizes the aggregate present value of Contract Payments without causing any payment to be nondeductible by the Company because of said Section 280G of the Code. If under the Section the certified Public Accountants determine that any payment would more likely than not be nondeductible by the Company because of Section 280G of the Code, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in his sole discretion, which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments or any other payments equals the Reduced AmountInvoluntary Termination), and shall advise the Company in writing of his election within 20 business days of his receipt of notice. If no such election is made by Executive within such 20-day period, the Company may elect which and how much of the Contract Payments less applicable withholding taxes or any other payments shall be eliminated or reduced (as long as after such election the Aggregate present value of the Contract Payments equals the Reduced Amount) and shall notify Executive promptly of such election. For purposes of this Section, present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Certified Public Accountants shall be binding upon the Company and Executive and the payment to Executive shall be made within 20 days of sale withholding obligations of the Company. The Company may suspend for factor to be applied to the lump sum payment above shall be two (2) if the Employee is the Chief Executive Officer, one and one-half (1.5) if the Employee is the General Counsel or a period member of up to 30 days after the sale E-Staff, and one (1) in all other cases; in each case measured as of the Company date of the Payment event constituting or giving rise to the occurrence of an Involuntary Termination. For example, if the Employee is a member of E-Staff, then the lump sum cash payment shall be equal to one and any other payments or benefits due one-half times the amount equal to Executive until the Certified Public Accountants finish Employee’s annual base salary plus target annual bonus. (ii) if the determination and Executive (or Employee was participating in the Company’s group health plan immediately prior to the date of termination, as and completes and timely files all necessary election documentation to elect continuation of coverage under the case may be) elects how to reduce the Contract Payments or any other paymentsConsolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), if necessary. As promptly as practicable following such determination and the elections hereunder, then the Company shall pay to our distribute the Employee a monthly cash payment for eighteen (18) months or the Executive’s COBRA health continuation period, whichever ends earlier, in an amount equal to or for the benefit of Executive such amounts as are then due monthly employer contribution that the Company would have made to Executive under this Agreementprovide health insurance to the Employee if the Employee had remained employed by the Company.

Termination in Connection with a Change of Control. If Executive’s employment hereunder is terminated during the Term (aI) In the event of a "Change in Control" of by the Company (as defined herein)A) other than for Cause, and in the event that either in contemplation of such Change of Control or after such Change of Control, Executive's employment is terminated without cause, in addition to any payments to which Executive may be entitled pursuant to Section 4.1, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greater. In the event Executive voluntarily terminates his employment with the Company within six months of a Change of Control, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth times the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greater. In addition, in either case, notwithstanding the provisions of any stock option agreement, all stock options held by the Executive shall vest upon such Change of Control. (b) For purposes of this Section 4.4, a "Change in Control" of the Company shall be deemed to have occurred if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than due to Executive’s death or Disability, or (B) as a trustee or other fiduciary holding securities under an employee benefit plan result of the Company, who is not a "beneficial owner" (as defined in Rule 13d-3 under said Act), of 5% or more ’s non-renewal of the Company's common stock as of the date of this agreement becomes the beneficial owner, directly or indirectly, of capital stock of the Company representing 40 percent or more of the total voting power represented by the Company's then outstanding capital stockTerm, or (iiII) the shareholders of the Company approve (x) a merger or consolidation of the Company by Executive with Good Reason, in any other company, other than a merger or consolidation in which the shareholders of the Company would own 50% or more of the voting stock of the surviving corporation, (y) the sale of all of substantially all of the assets of the Companycase within 120 days prior to, or (z) the liquidation or dissolution of the Company. (c) Anything in this Agreement to the contrary notwithstandingwithin one year following, prior to the payment of any compensation or benefits payable under paragraph (a) of this Section 4.4 hereof, the certified public accountants of the Company immediately prior to a Change of Control (as defined below), provided that no Change of Control shall be deemed to occur unless the "Certified Public Accountants") shall determine as promptly as practical and in any relevant transaction constitutes a change of control event with 20 business days following the sale of the Company whether any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other agreements or otherwise) (a "Payment") would more likely than not be nondeductible by the Company for Federal income tax purposes because of section 280G under Section 409A of the Internal Revenue Code of 1986, as amended (the "“Code") and if it is”), then Executive shall be entitled to (i) the aggregate present value Accrued Benefits and (ii) upon Executive’s execution of amounts payable the Release, and the expiration of the applicable revocation period with respect to such Release within sixty (60) days following the date of termination, and provided that Executive does not materially breach the Restrictive Covenants or distributable any other ongoing obligation to or which Executive is subject as of the date of termination: (i) an amount equal to one and one half times the sum of (a) the Base Compensation then in effect and (b) the Target Annual Bonus for the benefit year in which the termination occurs, to be paid in a lump sum on the 60th day following the date of termination; (ii) the Company Pro-Rata Bonus, to be paid in a cash lump sum on the 60th day following the date of termination; and (iii) immediate vesting (and, if applicable, payment) of all outstanding unvested Equity Awards. Notwithstanding the foregoing, in the event that Executive’s termination pursuant to this Agreement (such payments or distributions pursuant Section 5(c) occurs within 120 days prior to this Agreement are thereinafter referred to as "Contract Payments") shall be reduced (but not below zero) a Change in Control, to the Reduced Amount. For purposes of this Section, the "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Contract Payments without causing any payment extent required to be nondeductible by the Company because of said avoid adverse tax consequences under Section 280G of the Code. If under the Section the certified Public Accountants determine that any payment would more likely than not be nondeductible by the Company because of Section 280G 409A of the Code, Executive shall receive the Company shall promptly give Executive notice to that effect payments and a copy of the detailed calculation thereof benefits set forth in Section 5(c)(i) and of the Reduced Amount, and the Executive may then elect, in his sole discretion, which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments or any other payments equals the Reduced Amountiii), and shall advise respectively, pursuant to the Company applicable schedules set forth in writing of his election within 20 business days of his receipt of notice. If no such election is made by Executive within such 20-day period, the Company may elect which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the Aggregate present value of the Contract Payments equals the Reduced AmountSections 5(b)(i) and shall notify Executive promptly of such election. For purposes of this Section(iii), present value shall be determined in accordance with Section 280G(d)(4) of the Code. All determinations made by the Certified Public Accountants shall be binding upon the Company and Executive and the payment to Executive shall be made within 20 days of sale of the Company. The Company may suspend for a period of up to 30 days after the sale of the Company the Payment and any other payments or benefits due to Executive until the Certified Public Accountants finish the determination and Executive (or the Company, as the case may be) elects how to reduce the Contract Payments or any other payments, if necessary. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to our distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementrespectively.

Termination in Connection with a Change of Control. (a) In the event of a "Change in Control" of that the Company terminates Executive’s employment and this Agreement without Cause or if Executive terminates his employment and this Agreement for Good Reason within two (as defined herein), and in the event that either in contemplation of such Change of Control or after such 2) years following a Change of Control, Executive's employment is terminated without cause, in addition to any payments to which Executive may be entitled pursuant to Section 4.1, subject to the provisions of paragraph (c) below, then Executive shall be entitled to receive, instead of the amounts set forth in Section 11(c), the following: (i) a lump sum payment of the Accrued Obligations within five (5) days following the date of termination; (ii) a lump sum payment of severance payment pay equal to the product of the number of full years of employment of Executive with the Company times the sum of (iA) one month's salary, three (3) times his Base Salary (at the rate then in effect) and (iiB) one/twelfth three times an amount equal to the annual bonus earned highest Bonus paid to Executive at any time during the three (3) year period prior to the Change in Control; and (iii) continued health and other welfare benefits in accordance with Section 11(c). All other benefits, if any, due Executive following Executive’s termination of employment by the Company without Cause or by Executive for Good Reason under the last complete calendar year or year of employment, whichever is greater. In the event Executive voluntarily terminates his employment circumstances described in this Section 11(e) shall be determined in accordance with the Company within six months of a Change of Controlplans, subject to the provisions of paragraph (c) below, Executive shall be entitled to a severance payment equal to the product policies and practices of the number of full years of employment of Executive with the Company times the sum of (i) one month's salary, and (ii) one/twelfth times the annual bonus earned by Executive for the last complete calendar year or year of employment, whichever is greaterCompany. In addition, in either case, notwithstanding the provisions of any stock option agreement, all stock options held by the Executive shall vest upon such Change of Control. (b) For purposes of this Section 4.4Agreement, a "“Change in of Control" of the Company ” shall be deemed to have occurred if on the first day that any one or more of the following conditions has been satisfied: (i) a report on Schedule 13D being filed with the Securities and Exchange Commission pursuant to Section 13(d) of the Securities and Exchange Act of 1934 (the “Exchange Act”) disclosing that any "“person" ” (within the meaning of Section 13(d) of the Exchange Act), other than the Company or any of its subsidiaries or any employee benefit plan sponsored by the Company or any of its subsidiaries, is the “beneficial owner” (as such term is used described in Sections Rule 13d-3 of the Exchange Act) directly or indirectly of twenty (20%) or more of the outstanding common stock of the Company; (ii) any “person” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amendedAct), other than a trustee the Company or other fiduciary holding securities under an any of its subsidiaries or any employee benefit plan sponsored by the Company or any of its subsidiaries, shall purchase shares pursuant to a tender offer or exchange offer to acquire any common stock of the Company (or securities convertible into common stock of the Company) for cash, who securities or any other consideration, provided that after consummation of the offer, the person in question is not a "the “beneficial owner" ” (as defined such term is described in Rule 13d-3 under said Act), of 5% or more of the Company's common stock as of the date of this agreement becomes the beneficial owner, Exchange Act) directly or indirectly, of capital fifteen percent (15%) or more of the outstanding common stock of the Company representing 40 percent or more (calculated as provided in paragraph (d) of Rule 13d-3 under the total voting power represented by Exchange Act in the Company's then outstanding capital case of rights to acquire common stock, or ); (iiiii) the shareholders stockholders of the Company approve (xA) a any consolidation or merger or consolidation of the Company with any in which the Company is not the continuing or surviving corporation or pursuant to which shares of common stock of the Company would be converted into cash, securities or other companyproperty, other than a merger or consolidation in which the shareholders of the Company would own 50% or more in which holders of the voting common stock of the surviving corporation, (y) the sale of all of substantially all of the assets of the Company, or (z) the liquidation or dissolution of the Company. (c) Anything in this Agreement to the contrary notwithstanding, prior to the payment of any compensation or benefits payable under paragraph (a) of this Section 4.4 hereof, the certified public accountants of the Company immediately prior to a Change the merger have the same proportionate ownership of Control (the "Certified Public Accountants") shall determine as promptly as practical and in any event with 20 business days following the sale common stock of the Company whether surviving corporation immediately after the merger as immediately before or (B) any payment sale, lease, exchange or distribution other transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Company; or (iv) a change in the majority of the members of the Board within a twelve (12) month period unless the election or nomination for election by the Company to or for the benefit Company’s stockholders of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any other agreements or otherwise) (a "Payment") would more likely than not be nondeductible each new director during such twelve month period was approved by the Company for Federal income tax purposes because vote of section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and if it is, then the aggregate present value of amounts payable or distributable to or for the benefit of the Company pursuant to this Agreement (such payments or distributions pursuant to this Agreement are thereinafter referred to as "Contract Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this Section, the "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Contract Payments without causing any payment to be nondeductible by the Company because of said Section 280G of the Code. If under the Section the certified Public Accountants determine that any payment would more likely than not be nondeductible by the Company because of Section 280G of the Code, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount, and the Executive may then elect, in his sole discretion, which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments or any other payments equals the Reduced Amount), and shall advise the Company in writing of his election within 20 business days of his receipt of notice. If no such election is made by Executive within such 20two-day period, the Company may elect which and how much of the Contract Payments or any other payments shall be eliminated or reduced (as long as after such election the Aggregate present value of the Contract Payments equals the Reduced Amount) and shall notify Executive promptly of such election. For purposes of this Section, present value shall be determined in accordance with Section 280G(d)(4thirds ( 2/3) of the Code. All determinations made by directors then still in office who were directors at the Certified Public Accountants shall be binding upon the Company and Executive and the payment to Executive shall be made within 20 days beginning of sale of the Company. The Company may suspend for a period of up to 30 days after the sale of the Company the Payment and any other payments or benefits due to Executive until the Certified Public Accountants finish the determination and Executive such twelve (or the Company, as the case may be12) elects how to reduce the Contract Payments or any other payments, if necessary. As promptly as practicable following such determination and the elections hereunder, the Company shall pay to our distribute to or for the benefit of Executive such amounts as are then due to Executive under this Agreementmonth period.