even if it does not provide substantially similar terms) and the portions of the Annual Equity Awards, that have been granted prior to Employee’s termination date, that are then outstanding and not yet vested, and are scheduled to vest within the period of twelve (12) months following the date of such termination of Employee’s employment, shall immediately accelerate and become fully vested (subject to Employee’s satisfying the requirement to provide a general release of claims in accordance with Section 8(a)(v)), provided, however, that any such portion shall vest only to the extent it is granted and not yet vested on Employee’s termination date (and any portion of each such award that is not vested after giving effect to such acceleration provision shall terminate on Employee’s termination date).”
| • | | Section 8(a)(vi) of the Agreement is hereby amended and restated, effective as of July 31, 2023, to read in its entirety as follows: |
“The foregoing notwithstanding, if: Employee’s employment with the Company is terminated by the Company without cause (as defined in Section 8(a)(v)) or for “Good Reason” (as defined below) on or within twelve (12) months following a Change of Control (as defined in Section 5), then in lieu of the severance provided in Section 8(a)(v) above, Employee shall be entitled to receive: a severance payment equal to the greater of: (A) 100% of the aggregate amount of the Base Salary that Employee would have been entitled to receive pursuant to Section 2(a) hereof for the period commencing on the date of such termination and ending on the last day of the scheduled Term then in effect had Employee continued to be employed with the Company through the last day of the scheduled Term; or, (B) eighteen (18) months’ Base Salary at the rate then in effect. Subject to such release requirement set forth above, such payment shall be made in cash in a lump sum as soon as practicable after (and in all events within sixty (60) days after) the date of Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) with the Company; provided, however, that if the 60-day period following Employee’s separation from service spans two calendar years, such lump sum payment shall be made within such 60-day period but in the second of the two calendar years. The Company shall provide the final form of release agreement to Employee not later than seven (7) days following the termination date. The Company’s provision of the payment and benefits referred to in this Section 8(a)(vi), in addition to the Company’s payment of the amounts described in Section 5, Section 8(a)(vii) and the accrued obligations described in Section 8(b) below, shall relieve the Company of any and all further payments owed to Employee.
For purposes of this Agreement, “Good Reason” shall mean any (without Employee’s consent): (x) material diminution by the Company in Employee’s duties, responsibilities and authority as measured against Employee’s responsibilities prior to the Change of Control, or any change in the positions to which Employee reports which results in Employee reporting to individuals with a materially lower level of authority than the individuals to whom Employee reports as of the date hereof (excluding any change in duties, responsibilities, authority and reporting as may take place and is so permitted pursuant to Section