Termination of Employment Following Change of Control. (i) If the Employer’s common stock closing price is above Nine Dollars ($9.00) per share on a trading day that is within five (5) trading days of the date of a Change of Control and if, within the two (2) year period following a Change of Control, Executive’s employment with Employer or an Affiliate or successor of Employer is terminated for any reason other than death, Inability to Perform, or Cause, by Executive for Good Reason, or if Employer or an Affiliate or successor of Employer gives timely notice pursuant to Paragraph 5(f) and Executive’s employment therefore ends upon the expiration of the Employment Term, Executive will be paid the Compensation Payment, the Vacation Payment and any unreimbursed Business Expenses, at the time and in the manner required by applicable law but in no event later than thirty (30) business days after the Employment Termination Date. In addition, if, within forty-five (45) days after the Employment Termination Date (or within the expiration of such other longer review and revocation period as may then be mandated by law), Executive has signed a general release agreement in a form satisfactory to Employer and Executive does not revoke such release, in lieu of any other severance or separation payments or benefits, Employer shall (A) pay Executive a lump-sum amount equivalent to the sum of the amounts specified in Paragraph 6(e)(ii)(A) and 6(e)(ii)(B) (the “Change of Control Severance Payment”), and (B) provide Executive the benefits described in Paragraph 6(e)(ii)(C) and 6(e)(ii)(D). The provisions of Paragraph 6(e)(ii)(E) and 6(e)(ii)(F) shall not apply to this Paragraph 6(f). If the Employer’s common stock closing price is between Seven Dollars and Fifty Cents ($7.50) and Nine Dollars ($9.00) per share on a trading day that is within five trading days of the date of a Change of Control, and all other conditions of this Paragraph 6(f)(i) are satisfied, Executive shall receive the payments and benefits as specified above in this Paragraph 6(f)(i) but the Change of Control Severance Payment shall be reduced by 50%. (ii) The Change of Control Severance Payment shall be paid in a single lump sum payment on the sixtieth (60th) business day after the Employment Termination Date.
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Termination of Employment Following Change of Control. (i) If the Employer’s common stock closing price is above Nine Dollars ($9.00) 2.00 per share on a trading day that is within five (5) trading days of the date of a Change of Control and if, within the two (2) two-year period following a Change of Control, Executive’s employment with Employer or an Affiliate or successor of Employer is terminated for any reason other than death, Inability to Perform, or Cause, is terminated by Executive for Good Reason, or if Employer or an Affiliate or successor of Employer gives timely notice pursuant to Paragraph 5(f6(f) and Executive’s employment therefore ends upon the expiration of the Employment Term, Executive will be paid the Compensation Payment, the Vacation Payment and any unreimbursed Business Expenses, at the time and in the manner required by applicable law but in no event later than thirty (30) 30 business days after the Employment Termination Date. In addition, if, within forty-five (45) 45 days after the Employment Termination Date (or within the expiration of such other longer review and revocation period as may then be mandated by law)Date, Executive has signed a general release agreement in a form satisfactory to Employer and Executive does not revoke such release, in lieu of any other severance or separation payments or benefitspayments, Employer shall (A) pay Executive a lump-sum amount equivalent to the sum of the amounts specified in Paragraph 6(e)(ii)(A7(e)(ii)(A) and 6(e)(ii)(B) (the “Change of Control Severance Payment”7(e)(ii)(B), and (B) provide Executive the benefits described in Paragraph 6(e)(ii)(C7(e)(ii)(C), 7(e)(ii)(D) and 6(e)(ii)(D7(e)(ii)(E). The provisions of Paragraph 6(e)(ii)(E7(e)(ii)(E) and 6(e)(ii)(F7(e)(ii)(F) shall not apply to this Paragraph 6(f7(f). .
(ii) If the Employer’s common stock closing price is between Seven Dollars $1.25 and Fifty Cents ($7.50) and Nine Dollars ($9.00) 2.00 per share on a trading day that is within five trading days of the date of a Change of Control and if, within the two-year period following a Change of Control, Executive’s employment with Employer or an Affiliate or successor of Employer is terminated for any reason other than death, Inability to Perform, or Cause, is terminated by Executive for Good Reason, or if employer or an Affiliate or successor of Employer gives timely notice pursuant to Paragraph 6(f) and all Executive’s employment therefore ends upon the expiration of the Employment Term, Executive will be paid fifty percent (50%) of the Compensation Payment, the Vacation Payment and any unreimbursed Business Expenses, at the time and in the manner required by applicable law but in no event later than 30 business days after the Employment Termination Date. In addition, if, within 45 days after the Employment termination Date, Executive has signed a general release agreement and Executive does not revoke such release, in lieu of any other conditions payments, Employer shall (A) pay Executive a lump-sum amount equivalent to the sum of the amounts specified in Paragraph 7(e)(ii)(A) and 7(e)(ii)(B), and (B) provide Executive the benefits described in Paragraph 7(e)(ii)(C), 7(e)(ii)(D) and 7(e)(ii)(E). The provisions of Paragraph 7(e)(ii)(E) and 7(e)(ii)(F) shall not apply to this Paragraph 6(f)(i) are satisfied, Executive shall receive the payments and benefits as specified above in this Paragraph 6(f)(i) but the Change of Control Severance Payment shall be reduced by 50%7(f).
(iiiii) The Change of Control Severance Payment payment provided for in Paragraph 7(f)(i)(A) shall be paid in a single lump sum payment on the sixtieth (60th) 60th business day after the Employment Termination Date.
(iv) In the event that it is determined that any payment (other than the Gross-Up payment provided for in this Paragraph 7(f)(iii)) or distribution by Employer or any of its Affiliates to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code (or any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of Employer, within the meaning of Section 280G of the Code or any successor provision thereto (such tax being hereafter referred to as the “Excise Tax”), then Executive will be entitled to receive an additional payment or payments (a “Gross-Up Payment”). The Gross-Up Payment will be in an amount such that, after payment by Executive of all taxes, including any Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. For purposes of determining the amount of the Gross-Up Payment, Executive will be considered to pay (x) federal income taxes at the highest rate in effect in the year in which the Gross-Up Payment will be made and (y) state and local income taxes at the highest rate in effect in the state or locality in which the Gross-Up Payment would be subject to state or local tax, net of the maximum reduction in federal income tax that could be obtained from deduction of such state and local taxes. The determination of whether an Excise Tax would be imposed, the amount of such Excise Tax, and the calculation of the amounts referred to in this Paragraph 7(f)(iii) will be made at the expense of Employer by Employer’s regular independent accounting firm (the “Accounting Firm”), which shall provide detailed supporting calculations. Any determination by the Accounting Firm will be binding upon Employer and Executive. The Gross-Up Payment will be paid to Executive as soon as administratively practicable following, but no later than the end of the calendar year in which falls the date on which Executive remits the related taxes.
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