CHANGE IN CONTROL SEVERANCE AGREEMENT AS AMENDED AND RESTATED

EXHIBIT 10.38

CHANGE IN CONTROL SEVERANCE AGREEMENT

AS AMENDED AND RESTATED

WHEREAS, Executive is a senior executive of the Company or one of its Subsidiaries (as defined below) and has made and is expected to continue to make major contributions to the short-term and long-term profitability, growth and financial strength of the Company; and

WHEREAS, the Board of Directors of the Company (the “Board,” as defined in Section 23) recognizes that, as is the case with many publicly-held corporations, the possibility of a Change in Control (as defined in Section 23) exists and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of key management personnel to the detriment of the Company and its stockholders; and

WHEREAS, the Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of, and to contract for the continued rendering of services by, members of the Company’s management, including Executive, in connection with their assigned duties without distraction in the face of potentially disturbing circumstances, and without the Company’s loss of needed personnel, arising from the possibility of a Change in Control; and

WHEREAS, in consideration of Executive’s continued employment with the Company, the Company desires to provide Executive with certain compensation and benefits set forth in this Agreement in order to ameliorate the financial and career impact on Executive in the event Executive’s employment with the Company is terminated for a reason related to a Change in Control; and

WHEREAS, the Company and the Executive entered into the Original Agreement, effective as of the Effective Date; and

WHEREAS, the Company and the Executive now desire to amend, restate and supercede the Original Agreement to reflect provisions of Section 409A of the Internal Revenue Service Code and the final regulations issued thereunder, which amendment is to be effective as of the Effective Date.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth (including definitions of capitalized terms which are set forth in Section 23 and throughout this Agreement) and intending to be legally bound hereby, the Company and Executive agree as follows:

1. Obligations of Executive to Remain Employed .  Executive agrees that in the event any person or group attempts a Change in Control and he is either notified by the Board or aware of an attempted Change in Control, he shall not, without the written agreement of the Board, voluntarily leave the employ of the Company other than by reason of a Constructive Termination Associated With a Change in Control (as defined in Section 23) (i) until such attempted Change in Control terminates or (ii) if a Change in Control shall occur, until the occurrence of such actual Change in Control.  For purposes of the foregoing clause (i) and this Agreement, Constructive Termination Associated With a Change in Control shall be determined, except as expressly provided in the definition of the term, as if a Change in Control had occurred when such attempted Change in Control (which is sometimes referred to herein as a “potential”, as opposed to an “actual”, Change in Control) became known to the Board.  For purposes of this Agreement, any decision by the Board that the person or group has abandoned or terminated his or its efforts to effect a Change in Control shall be conclusive and binding on Executive.

2. Termination Associated With a Change in Control .

(a) Involuntary Termination Associated With a Change in Control . Executive shall be entitled to the payments and benefits provided in Section 2(b) in the event Executive’s employment is terminated after, or in connection with, a Change in Control, on account of:

(i) an Involuntary Termination Associated With a Change in Control (as defined in Section 23) within the two-year period after an actual Change in Control,

(ii) a termination by the Company, other than for Cause (as defined in Section 23) or other than due to Executive’s death or Disability (as defined in Section 23), that (A) occurs not more than three (3) months prior to the date on which an actual Change in Control occurs or (B) is requested by a third party who initiates and effects an actual Change in Control, or

(iii) a termination by Executive that occurs after a potential Change in Control but before an actual Change in Control and is considered a Constructive Termination Associated With a Change in Control.

For purposes of clause (ii)(B) in the preceding sentence, to be eligible to receive amounts described in Section 2(b) below, a Change in Control must be consummated within the twelve (12) month period following Executive’s Termination Date (as defined in Section 23), except in circumstances pursuant to which the consummation of the Change in Control is delayed, through no failure of the Company or the third person, by a governmental or regulatory authority or agency with jurisdiction over the matter, or as a result of other similar circumstances. In such a circumstance, the remainder of the twelve (12) month period shall be tolled and shall recommence upon termination of the delaying event.

(b) Payments Upon Involuntary Termination Associated With a Change in Control . Subject to the provisions of Section 2(c) or Sections 3 and 6 hereof, in the event a termination described in Section 2(a) occurs, the Company shall pay and provide to Executive on or beginning, as applicable, the first business day that occurs following sixty (60) days after his Termination Date or, where Executive is entitled to benefits under this Agreement by reason of clause (ii) or (iii) of Section 2(a) above, the later of as soon as administratively feasible after the date an actual Change in Control occurs or the first business day that occurs following sixty (60) days after his Termination Date (contingent on the execution of the release without revocation as contemplated in Section 4 hereof):

(i) a lump sum cash payment equal to 1.5 times Executive’s Base Pay (as defined in Section 23);

(ii) a lump sum cash payment equal to 1.5 times Executive’s Target Bonus (as defined in Section 23);

(iii) a pro rated payment of his Target Bonus for the year in which Executive’s Termination Date occurs. The pro rated payment shall be based on Executive’s Target Bonus as of Executive’s Termination Date, multiplied by a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year of his termination and the denominator of which is 365;

(iv) any award under the Company’s long-term cash and equity incentive program, including stock option, restricted stock, restricted unit, other equity- or cash-based incentive awards or other equity- or cash-based incentive agreements, which by its terms vests in connection with the Change in Control, provided that payment of such award shall be determined solely by the terms of such award and any plan, program or arrangement which controls its determination and payment; and

(v) for a period of 24 months following his Termination Date, Executive shall continue to receive on a monthly basis the medical and dental coverage in effect on his Termination Date (or generally comparable coverage) for himself and, if applicable, his spouse and dependents, as the same may be changed from time to time for employees generally, as if Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay Executive cash in lieu of such coverage in an amount equal to Executive’s reasonable after-tax cost of continuing comparable coverage, where such coverage may not be continued by the Company (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided), with any such cash payments to be made in accordance with the ordinary payroll practices of the Company (not less frequently than monthly) for employees generally for the period during which such cash payments are to be provided.

(A) If Executive does not receive the cash payment described in the preceding sentence, the Company shall take all commercially reasonable efforts to provide that the COBRA (as defined in Section 23) health care continuation coverage period under section 4980B of the Code (as defined in Section 23) shall commence immediately after the foregoing 24 month benefit period, with such continuation coverage continuing until the end of applicable COBRA health care continuation coverage period.

(B) If Executive would have been eligible for post-retirement medical and dental coverage had he retired from employment during the period of 24 months following his Termination Date, but is not so eligible as the result of his Involuntary Termination Associated With a Change in Control, then at the conclusion of the benefit continuation period described in (A) above, the Company shall take all commercially reasonable efforts to provide Executive on a monthly basis with additional continued group medical and dental coverage comparable to that which would have been available to him from time to time under the Company’s post-retirement medical and dental program, for as long as such coverage would have been available under such program, or, as an alternative, the Company may elect to pay Executive cash in lieu of such coverage in an amount equal to Executive’s reasonable after-tax cost of continuing comparable coverage, where such coverage may not be continued by the Company (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided), with any such cash payments to be made in accordance with the ordinary payroll practices of the Company (not less frequently than monthly) for employees generally for the period during which such cash payments are to be provided.

(c) Limitation on Payments and Benefits . Notwithstanding anything in this Agreement to the contrary, the sum of the maximum amount payable and the value of the benefits provided to Executive pursuant to this Section 2 and Section 6(a) shall be limited to 2.99 times the sum of Executive’s Base Pay and Bonus (as defined in Section 23). In the event a reduction is required pursuant hereto, unless Executive is permitted by the Company to choose the order of reduction, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis, and lastly medical and dental coverage.

(d) Cessation of Employment on Account of Disability, Cause or Death . Notwithstanding anything in this Agreement to the contrary, if Executive’s employment terminates on account of Disability, Executive shall be entitled to receive disability benefits under any disability program maintained by the Company that covers Executive, and Executive shall not be considered to have terminated employment under this Agreement and shall not receive payments and benefits pursuant to this Section 2. If Executive’s employment is terminated by the Company on account of Cause or because of his death, Executive shall not be considered to have terminated employment under this Agreement and shall not receive payments and benefits pursuant to this Section 2.

(e) Beneficiaries . Executive shall be entitled to select (and change, to the extent permitted under any applicable law) a beneficiary or beneficiaries to receive any compensation or benefit payable hereunder following Executive’s death, and may change such election, in either case by giving the Company written notice thereof. In the event of Executive’s death or a judicial determination of his incompetence, reference in this Agreement to Executive shall be deemed, where appropriate, to refer to his beneficiary, estate or other legal representative. If Executive dies without having designated a beneficiary, or if the beneficiary so designated has predeceased Executive or cannot be located by the Company within one year after the date when the Company commenced making a reasonable effort to locate such beneficiary, then Executive's surviving spouse, or if none, then Executive's estate shall be deemed to be his beneficiary.

3. Nonqualified Deferred Compensation Plan Omnibus Provisions . Notwithstanding any other provision of this Agreement, it is intended that any payment or benefit which is provided pursuant to or in connection with this Agreement which is considered to be nonqualified deferred compensation subject to Section 409A of the Code shall be provided and paid in a manner, and at such time and in such form, as complies with the applicable requirements of Section 409A of the Code to avoid the unfavorable tax consequences provided therein for non-compliance.  Notwithstanding any other provision of this Agreement, the Board is authorized to amend this Agreement, to amend any election made by Executive under this Agreement and/or to delay the payment of any monies and/or provision of any benefits in such manner as may be determined by it to be necessary or appropriate to comply, or to evidence or further evidence required compliance, with Section 409A of the Code (including any transition or grandfather rules thereunder).  For purposes of this Agreement, all rights to payments and benefits hereunder shall be treated as rights to a series of separate payments and benefits to the fullest extent allowable by Section 409A of the Code.  Payments or provision of benefits in connection with a separation from service payment event will be delayed, to the extent applicable, until six months after the separation from service or, if earlier, the Executive’s death, if the Executive is a key employee of a publicly traded corporation under Section 409A(a)(2)(B)(i) of the Code (the “409A Deferral Period”).  In the event such payments are otherwise due to be made in installments or periodically during the 409A Deferral Period, the payments which would otherwise have been made in the 409A Deferral Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends, and the balance of the payments shall be made as otherwise scheduled.  In the event benefits are required to be deferred, any such benefit may be provided during the 409A Deferral Period at Executive’s expense, with Executive having a right to reimbursement from the Company once the 409A Deferral Period ends, and the balance of the benefits shall be provided as otherwise scheduled.  For purposes of this Agreement, termination of employment will be read to mean a “separation from service” within the meaning of Section 409A of the Code where it is reasonably anticipated that no further services would be performed after that date or that the level of bona fide services Executive would perform after that date (whether as an employee or independent contractor) would permanently decrease to no more than 20 percent of the average level of bona fide services performed over the immediately preceding thirty-six (36)-month period.

4. Release . Notwithstanding the foregoing, no payments shall be made or benefits provided under Section 2(b) unless Executive executes, and does not revoke, the Company’s standard written release, substantially in the form as attached hereto as Appendix A (the “Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of Executive’s employment by the Company (other than any claim or entitlement under an employee benefit, long term cash or equity compensation plan, program, arrangement or agreement which is due pursuant to the terms of such plan, program, arrangement or agreement) or a termination thereof. Such Release must be provided within sixty (60) days after Executive’s Termination Date or, where Executive is entitled to benefits under this Agreement by reason of clause (ii) or (iii) of Section 2(a) above, the later of the date an actual Change in Control occurs or within sixty (60) days after the Executive’s Termination Date.

5. Enforcement . Without limiting the rights of Executive at law or in equity, except as provided in Section 6, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite “prime rate” as quoted from time to time during the relevant period in the Eastern Edition of The Wall Street Journal . Such interest will be payable as it accrues consistent with the timing of the related payments or benefits to be provided. Any change in such prime rate will be effective on and as of the date of such change.

6. Tax Limitation on Payments by the Company . The provisions of this Section 6 shall apply notwithstanding anything in this Agreement to the contrary.

(a) Subject to the limitation in Section 2(c), in the event that it shall be determined that any Payment would constitute an “excess parachute payment” within the meaning of Section 280G of the Code, then the Payments under Section 2 of this Agreement (“Change in Control Payments”) shall be reduced (but not below zero) so that the Present Value of the aggregate of all Payments does not exceed the Reduced Amount; provided, however, that no such reduction shall be effected if the Net After-tax Benefit to Executive of receiving all of the Payments exceeds the Net After-tax Benefit to Executive resulting from having such Change in Control Payments so reduced. In the event a reduction is required pursuant hereto, the order of reduction shall be first all cash payments on a pro rata basis, then all equity compensation on a pro rata basis, and lastly medical and dental coverage. For purposes of this Section 6, the following terms have the following meanings:

(i) “Net After-tax Benefit” shall mean the Present Value of a Payment net of all federal state and local income, employment and excise taxes imposed on Executive with respect thereto, determined by applying the highest marginal rate(s) applicable to an individual for Executive’s taxable year in which the Change in Control occurs.

(ii) “Payment” means any payment or distribution or provision of benefits 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 or otherwise, but determined without regard to any reductions required by this Section 6.

(iii) “Present Value” shall mean such value determined in accordance with Section 280G(d)(4) of the Code.

(iv) “Reduced Amount” shall be an amount expressed in Present Value which maximizes the aggregate Present Value of Payments without causing any Payment to be subject to excise tax under Section 4999 of the Code or the deduction limitation of Section 280G of the Code.

(b) Except as set forth in the next sentence, all determinations to be made under this Section 6 shall be made by the nationally recognized independent public accounting firm used by the Company immediately prior to the Change in Control (“Accounting Firm”), which Accounting Firm shall provide its determinations and any supporting calculations to the Company and Executive within ten days of Executive’s Termination Date. If determined by the Accounting Firm to be excludible from parachute payments under Section 280G of the Code, the value of Executive’s non-competition covenant under Section 10(a) of this Agreement shall be determined by independent appraisal by a nationally-recognized business valuation firm acceptable to both Executive and the Company, and a portion of the Change in Control Payments shall, to the extent of that appraised value, be specifically allocated as reasonable compensation for such non-competition covenant and shall not be treated as a parachute payment. Any such determination by the Accounting Firm shall be binding upon the Company and Executive.

(c)  If the Accounting Firm determines that Change in Control Payments should be reduced, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof.  All determinations made by the Accounting Firm under this Section 6 shall be binding upon the Company and Executive and shall be made within twenty (20) business days of Executive’s Termination Date.

(d)  While it is the intention of the Company and Executive to reduce the amounts payable or distributable to Executive hereunder only if the aggregate Net After-tax Benefit to Executive would thereby be increased in the manner provided for herein, as a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that amounts will have been paid or distributed by the Company to or for the benefit of Executive pursuant to this Agreement which should not have been so paid or distributed (“Overpayment”) or that additional amounts which will have not been paid or distributed by the Company to or for the benefit of Executive pursuant to this Agreement could have been so paid or distributed (“Underpayment”), in each case, consistent with the calculation of the Reduced Amount hereunder.  In the event that the Accounting Firm, based either upon the assertion of a deficiency by the Internal Revenue Service against the Company or Executive which the Accounting Firm believes has a high probability of success determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of Executive shall be treated for all purposes as a loan to Executive which Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be deemed to have been made and no amount shall be payable by Executive to the Company if and to the extent such deemed loan and payment would not either reduce the amount on which Executive is subject to tax under Sections 1 and 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, based upon controlling precedent or substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

(e) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 6 shall be borne solely by the Company.

7. Duties upon Termination; Mitigation Obligation . Upon termination of employment for any reason, Executive or his estate shall surrender to the Company all correspondence, letters, files, contracts, mailing lists, customer lists, advertising materials, ledgers, supplies, equipment, checks, and all other materials and records of any kind that are the property of the Company or any of its subsidiaries or affiliates, that may be in Executive’s possession or under his control, including all copies of any of the foregoing. The Company hereby acknowledges that it will be difficult and may be impossible for Executive to find reasonably comparable employment following the Termination Date. Accordingly, the payment and provision of the severance compensation by the Company to Executive in accordance with the terms of this Agreement is hereby acknowledged by the Company to be reasonable, and Executive will not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on the part of Executive hereunder or otherwise.

8. Legal Fees and Expenses . If litigation or arbitration is commenced by either party to enforce or interpret any provision contained in this Agreement, the Company will undertake to indemnify Executive for his reasonable attorneys' fees and expenses associated with such litigation or arbitration if Executive substantially prevails in such litigation or arbitration or any settlement thereof.  Notwithstanding the foregoing, if it should appear to Executive that the Company has failed to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, Executive the benefits provided or intended to be provided to Executive under Section 2 of this Agreement, the Company will in any event reimburse Executive for his reasonable attorneys' fees and expenses incurred in connection therewith up to $10,000 without regard to the commencement or outcome of any litigation or arbitration in order for Executive to retain counsel to advise and represent Executive in connection with any such interpretation, enforcement or defense, including without limitation the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer or employee of the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to Executive’s entering into an attorney-client relationship with such counsel, and in that connection, the Company and Executive agree that a confidential relationship will exist between Executive and such counsel. The first $10,000 of such expenses will be paid by the Company as they are incurred by Executive, and any balance thereof due to Executive shall be paid within thirty (30) days after any final judgment or decision or settlement in which Executive substantially prevails.  Any reimbursements to be paid by the Company to the Executive under this Section 8 for the first $10,000 of such expenses must be paid as soon as administratively feasible after the Executive incurs the expense and the Executive will be entitled to receive any balance thereof  as soon as administratively feasible after the termination of such litigation or arbitration or any settlement thereof under terms on which the Executive substantially prevails.

9. Confidentiality . Executive hereby covenants and agrees that, except as specifically requested or directed by the Company, he will not disclose to any person not employed by the Company, or use in connection with engaging in competition with the Company, any confidential or proprietary information (as provided below) of the Company. For purposes of this Agreement, the term “confidential or proprietary information” will include all information of any nature and in any form that is owned by the Company and that is not publicly available (other than by Executive’s breach of this Section 9) or generally known to persons engaged in businesses similar or related to those of the Company. Confidential or proprietary information will include, without limitation, the Company’s financial matters, customers, employees, industry contracts, strategic business plans, product development (or other proprietary product data), marketing plans, consulting solutions and processes, and all other secrets and all other information of a confidential or proprietary nature which is protected by the Uniform Trade Secrets Act. For purposes of the preceding two sentences, the term “Company” will also include any Subsidiary (as defined in Section 23; collectively, the “Restricted Group”). The foregoing obligations imposed by this Section 9 will not apply (i) in the course of the business of and for the benefit of the Company, (ii) if such confidential or proprietary information has become, through