(iii) a material diminution in the Executive’s authority, duties or responsibilities, or the assignment of additional duties that are materially inconsistent with the title or office held by the Executive prior to the Change in Control except as had been agreed to by the Executive in a transition or succession plan;
(iv) any other action or inaction that constitutes a material breach by the Company of this Agreement; and
(v) any failure by the Company to obtain the assumption of this Agreement by any successor or assign or the Company.
2.Change in Control. If, within twelve (12) months immediately following a Change in Control, the Executive’s employment is terminated by the Company without Cause or the Executive terminates his employment with the Company for Good Reason, the Executive shall be entitled to the benefits set forth in Section 3.
3.Severance Benefits. Subject to the Executive’s compliance with the terms of this Agreement upon termination of Executive’s employment for reasons described in Section 2 above, the Company shall pay or provide the Executive with the severance benefits described in clauses 3(a) through 3(d) below (collectively, the “Severance Benefits”):
(a)payment of an amount equal to one hundred percent (100%) of the Executive’s base salary, in substantially equal installments in accordance with the Company’s regular payroll practices, for a period of twelve (12) months, such amount to be paid at a rate equal, on an annualized basis, to the greater of his annual base salary in effect immediately prior to the Change in Control or his annual base salary in effect immediately prior to the termination of employment;
(b)payment of an amount equal to one hundred percent (100%) of the average of the annual cash bonuses paid to the Executive for the two (2) most recently completed fiscal years of the Company immediately preceding the date of the Executive’s termination of employment. If the termination of employment occurs after the close of a Company fiscal year but prior to payment of the bonus, the most recent bonus to be used for purposes of the foregoing calculation shall be the amount of the bonus as declared by the Board, or if no such declaration has yet to be made then the most recent bonus shall be the amount of the target bonus previously established for the Executive for the then-completed fiscal year. Such amount shall be paid in substantially equal installments in accordance with the Company’s regular payroll practices for a period of twelve (12) months;
(c)continued participation in the benefits in effect for Executive as of the date of termination of employment, subject to the terms and conditions of the respective plans and applicable law, for a period of twelve (12) months following the termination date; provided that to the extent that the Company’s plans, programs and arrangements do not permit such continuation of Executive’s participation following his termination of employment, the Company shall provide the Executive with an amount which is sufficient for him to purchase equivalent benefits, such amount to be paid quarterly in advance; provided, further, however, that if the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the Executive’s entitlement to participate in the Company’s