Common use of Acceleration Upon Change in Control Clause in Contracts

Acceleration Upon Change in Control. Upon the occurrence of (or, as the circumstances may require, immediately prior to) a Change in Control (as defined below), then any portion of the Stock Units subject to the Award that have not previously vested or terminated shall thereupon vest, unless prior to the Change in Control the Committee determines that benefits under this or other awards will not accelerate upon occurrence of the Change in Control or determines that only certain or limited benefits under some or all awards will be accelerated and the extent to which they will be accelerated, and/or establishes a different time in respect of the Change in Control for such acceleration. The Committee may accord the Participant a right to refuse any acceleration pursuant to this Agreement, in such circumstances as the Committee may approve. For purposes of this Agreement, “Change in Control” means any of the following: (a) approval by the stockholders of the Corporation of the dissolution or liquidation of the Corporation; (b) approval by the stockholders of the Corporation of an agreement to merge or consolidate, or otherwise reorganize, with or into one or more entities that are not majority-owned subsidiaries of the Corporation, as a result of which 50% or less of the outstanding voting securities of the surviving or resulting entity are, or are to be, owned by former stockholders of the Corporation; (c) approval by the stockholders of the Corporation of the sale or transfer of substantially all of the Corporation’s business and/or assets to a person or entity that is not a Subsidiary of the Corporation; or (d) the occurrence of any of the following: (i) any “person,” alone or together with all “affiliates” and “associates” of such person, without the prior approval of the Board, becomes the “beneficial owner” of more than 50% of the outstanding voting securities of the Corporation (the terms “person,” “affiliates,” “associates” and “beneficial owner” are used as such terms are used in the Securities Exchange Act of 1934 and the General Rules and Regulations thereunder); provided, however, that “Change in Control” shall not be deemed to have occurred if such “person” is the Corporation, any Subsidiary or any employee benefit plan or employee stock plan of the Corporation or of any Subsidiary, or any trust or other entity organized, established or holding shares of such voting securities by, for, or pursuant to the terms of any such plan; or (ii) individuals who at the beginning of any period of two consecutive calendar years constitute a majority of the Board cease for any reason, during such period, to constitute at least a majority thereof, unless the election, or the nomination for election by the Corporation’s stockholders, of each new Board member was approved by a vote of at least two-thirds of the Board members then still in office who were Board members at the beginning of such period.

Acceleration Upon Change in Control. Upon the occurrence of (or, as the circumstances may require, immediately prior to) a Change in Control (as defined below), then any portion of the Stock Units subject to the Award that have not previously vested or terminated shall thereupon vest, unless prior to the Change in Control the Committee determines that benefits under this or other awards will not accelerate upon occurrence of the Change in Control or determines that only certain or limited benefits under some or all awards will be accelerated and the extent to which they will be accelerated, and/or establishes a different time in respect of the Change in Control for such acceleration. The Committee may accord the Participant a right to refuse any acceleration pursuant to this Agreement, in such circumstances as the Committee may approve. For purposes of this Agreement, “Change in Control” means any of the following: (a) approval by the stockholders of the Corporation of the dissolution or liquidation of the Corporation; (b) approval by the stockholders of the Corporation of an agreement to merge or consolidate, or otherwise reorganize, with or into one or more entities that are not majority-owned subsidiaries of the Corporation, as a result of which 50% or less of the outstanding voting securities of the surviving or resulting entity are, or are to be, owned by former stockholders of the Corporation; (c) approval by the stockholders of the Corporation of the sale or transfer of substantially all of the Corporation’s business and/or assets to a person or entity that is not a Subsidiary of the Corporation; or (d) the occurrence of any of the following: (i) any “person,” alone or together with all “affiliates” and “associates” of such person, without the prior approval of the Board, becomes the “beneficial owner” of more than 50% of the outstanding voting securities of the Corporation (the terms “person,” “affiliates,” “associates” and “beneficial owner” are used as such terms are used in the Securities Exchange Act of 1934 and the General Rules and Regulations thereunder); provided, however, that “Change in Control” shall not be deemed to have occurred if such “person” is the Corporation, any Subsidiary or any employee benefit plan or employee stock plan of the Corporation or of any Subsidiary, or any trust or other entity organized, established or holding shares of such voting securities by, for, or pursuant to the terms of any such plan, or any member of or entity or group affiliated with the Lidow family; or (ii) individuals who at the beginning of any period of two consecutive calendar years constitute a majority of the Board cease for any reason, during such period, to constitute at least a majority thereof, unless the election, or the nomination for election by the Corporation’s stockholders, of each new Board member was approved by a vote of at least two-thirds of the Board members then still in office who were Board members at the beginning of such period.

Acceleration Upon Change in Control. Upon In the occurrence event of (or, as the circumstances may require, immediately prior to) a Change in In Control (as defined below)) of the Company, then any portion the holder of the Stock Units subject to options evidenced by this Agreement shall have the Award that have not previously vested or terminated shall thereupon vestright, unless immediately prior to the consummation of such transaction constituting the Change In Control, to exercise such options, to the extent not theretofore exercised, without regard to any of the requirements as to the time periods and installments of exercisability set forth in this Agreement if (and only if) such options have not expired or otherwise been terminated prior to such vesting and the date of such transaction. Notwithstanding the foregoing, such acceleration of exercisability shall not apply if a majority of the board of directors of the acquiring or surviving corporation (or a parent corporation thereof) immediately after such Change in Control the Committee determines that benefits under this or other awards will not accelerate upon occurrence transaction consists of the Change in Control or determines that only certain or limited benefits under some or all awards will be accelerated and the extent to which they will be accelerated, and/or establishes a different time in respect of the Change in Control for such acceleration. The Committee may accord the Participant a right to refuse any acceleration pursuant to this Agreement, in such circumstances as the Committee may approve. For purposes of this Agreement, “Change in Control” means any of the following: (a) approval by the stockholders of the Corporation of the dissolution or liquidation of the Corporation; (b) approval by the stockholders of the Corporation of an agreement to merge or consolidate, or otherwise reorganize, with or into one or more entities that are not majority-owned subsidiaries of the Corporation, as a result of which 50% or less of the outstanding voting securities of the surviving or resulting entity are, or are to be, owned by former stockholders of the Corporation; (c) approval by the stockholders of the Corporation of the sale or transfer of substantially all of the Corporation’s business and/or assets to a person or entity that is not a Subsidiary of the Corporation; or (d) the occurrence of any of the following: (i) any “person,” alone or together with all “affiliates” and “associates” of such person, without the prior approval of the Board, becomes the “beneficial owner” of more than 50% of the outstanding voting securities of the Corporation (the terms “person,” “affiliates,” “associates” and “beneficial owner” are used as such terms are used in the Securities Exchange Act of 1934 and the General Rules and Regulations thereunder); provided, however, that “Change in Control” shall not be deemed to have occurred if such “person” is the Corporation, any Subsidiary or any employee benefit plan or employee stock plan of the Corporation or of any Subsidiary, or any trust or other entity organized, established or holding shares of such voting securities by, for, or pursuant to the terms of any such plan; or (ii) individuals who at the beginning of any period of two consecutive calendar years constitute a majority of the Board cease for any reasonboard of directors of the Company immediately prior to such transaction and such surviving or acquiring corporation agrees to assume such options in connection with such transaction. 4 EXHIBIT 10.39 For the purposes of this section, during a "Change In Control" shall constitute (a) a sale of all or substantially all of the assets of the Company, (b) a merger or consolidation involving the Company in which the shareholders of the surviving corporation (or the parent corporation of the surviving corporation) and their proportionate interests in the surviving corporation (or such period, parent corporation) after such merger or consolidation are not substantially identical to constitute at least a majority thereof, unless the electionshareholders of the Company and their proportionate interests in the Company immediately prior to such merger or consolidation, or (c) a transaction in which any person or entity acquires from the nomination for election by the Corporation’s stockholders, of each new Board member was approved by a vote of at least two-thirds shareholders of the Board members then still Company securities of the Company representing more than fifty percent (50%) of the total combined voting power of all classes of outstanding capital stock of the Company. In addition to the foregoing, in office who were Board members at the beginning event a Change In Control transaction occurs and the options evidenced by this Agreement become subject to such acceleration of exercisability but the holder of such periodoptions elects not to exercise such options, all such options shall terminate upon consummation of such Change In Control transaction.

Acceleration Upon Change in Control. Upon If, prior to all of the occurrence of (orRestricted Shares having been released, as the circumstances may require, immediately prior to) Company undergoes a Change change in Control control (as defined below), then any portion all of the Stock Units Restricted Shares shall be released and no longer subject to the Award that have not previously vested or terminated shall thereupon vest, unless prior to the Change in Control the Committee determines that benefits restrictions under this or other awards will not accelerate upon occurrence of the Change in Control or determines that only certain or limited benefits under some or all awards will be accelerated and the extent to which they will be accelerated, and/or establishes a different time in respect of the Change in Control for such acceleration. The Committee may accord the Participant a right to refuse any acceleration pursuant to this Agreement, in such circumstances as the Committee may approve. For purposes of this Agreement, “Change a change in Control” control of the Company means the occurrence of any of the following: following events: (ai) the purchase or other acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”) (a “Person”) that is the beneficial owner (as such term is defined in Rule 13d-3 under the Exchange Act) of 50 percent or more of either the outstanding shares of common stock of the Company (or any entity which directly or indirectly controls the Company) or the combined voting power of the issued and outstanding voting securities of the Company (or any entity which directly or indirectly controls the Company) other than the acquisition by a trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by the Company (or any entity which directly or indirectly controls the Company) or by any employee benefit plan (or related trust) sponsored or maintained by the Company (or any entity which directly or indirectly controls the Company); (ii) the approval by the stockholders of the Corporation Company (or any entity which directly or indirectly controls the Company) of the dissolution a reorganization, merger, or liquidation of the Corporation; (b) approval by the consolidation, in each case, with respect to which Persons who were stockholders of the Corporation of an agreement Company (or any entity which directly or indirectly controls the Company) immediately prior to merge such reorganization, merger or consolidateconsolidation do not, or otherwise reorganizeimmediately thereafter, with or into one or own more entities that are not majority-owned subsidiaries than 50 percent of the Corporation, as a result combined voting power entitled to vote generally in the election of which 50% or less directors of the reorganized, merged or consolidated issued and outstanding voting securities of the surviving Company (or resulting any entity are, which directly or are to be, owned by former stockholders indirectly controls the Company); or (iii) a liquidation or dissolution of the CorporationCompany (or any entity which directly or indirectly controls the Company); or (civ) approval by the stockholders of the Corporation of the sale of all or transfer of substantially all of the Corporation’s business and/or assets to a person or entity that is not a Subsidiary of the Corporation; or Company (d) the occurrence of any of the following: (i) any “person,” alone or together with all “affiliates” and “associates” of such person, without the prior approval of the Board, becomes the “beneficial owner” of more than 50% of the outstanding voting securities of the Corporation (the terms “person,” “affiliates,” “associates” and “beneficial owner” are used as such terms are used in the Securities Exchange Act of 1934 and the General Rules and Regulations thereunder); provided, however, that “Change in Control” shall not be deemed to have occurred if such “person” is the Corporation, any Subsidiary or any employee benefit plan entity which directly or employee stock plan of indirectly controls the Corporation or of any Subsidiary, or any trust or other entity organized, established or holding shares of such voting securities by, for, or pursuant to the terms of any such plan; or (ii) individuals who at the beginning of any period of two consecutive calendar years constitute a majority of the Board cease for any reason, during such period, to constitute at least a majority thereof, unless the election, or the nomination for election by the Corporation’s stockholders, of each new Board member was approved by a vote of at least two-thirds of the Board members then still in office who were Board members at the beginning of such periodCompany).

Acceleration Upon Change in Control. Upon 3.1 Notwithstanding any provision in this Agreement, all RSUs shall immediately become vested upon the occurrence of (or, as the circumstances may require, immediately prior to) a Change in Control (as defined below), then any portion of the Stock Units subject to the Award that have not previously vested or terminated shall thereupon vest, unless prior to the Change in Control the Committee determines that benefits under this or other awards will not accelerate upon occurrence of the Change in Control or determines that only certain or limited benefits under some or all awards will be accelerated and the extent to which they will be accelerated, and/or establishes a different time in respect of the Change in Control for such acceleration. The Committee may accord the Participant a right to refuse any acceleration pursuant to this Agreement, in such circumstances as the Committee may approve. For purposes of this Agreement, “Control. 3.2 Change in Control” means any of the following: (a) approval by the stockholders of the Corporation of the dissolution or liquidation of the Corporation; (b) approval by the stockholders of the Corporation of an agreement to merge or consolidate, or otherwise reorganize, with or into one or more entities that are not majority-owned subsidiaries of the Corporation, as a result of which 50% or less of the outstanding voting securities of the surviving or resulting entity are, or are to be, owned by former stockholders of the Corporation; (c) approval by the stockholders of the Corporation of the sale or transfer of substantially all of the Corporation’s business and/or assets to a person or entity that is not a Subsidiary of the Corporation; or (d) the occurrence of any of the following: following events: (a) the approval by the shareholders of the Company of: (i) any “person,” alone consolidation, merger or together with all “affiliates” and “associates” of such person, without the prior approval of the Board, becomes the “beneficial owner” of more than 50% of the outstanding voting securities of the Corporation (the terms “person,” “affiliates,” “associates” and “beneficial owner” are used as such terms are used in the Securities Exchange Act of 1934 and the General Rules and Regulations thereunder); provided, however, that “Change in Control” shall not be deemed to have occurred if such “person” is the Corporation, any Subsidiary or any employee benefit plan or employee stock plan of share exchange involving the Corporation Company (Merger) in which the Company is not the continuing or of any Subsidiary, or any trust or other entity organized, established or holding shares of such voting securities by, for, surviving corporation or pursuant to which shares of Common Stock would be converted into cash, securities or other property, other than a Merger involving the terms Company in which the holders of any such plan; or the Company’s Common Stock immediately prior to the Merger have the same proportionate ownership of Common Stock of the surviving corporation immediately after the Merger; (ii) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Company; or (iii) the adoption of any plan or proposal for the liquidation or dissolution of the Company; (b) at any time during a period of two consecutive years, individuals who at the beginning of any such period of two consecutive calendar years constitute a majority of constituted the Board of Directors (Incumbent Directors) shall cease for any reason, during such period, reason to constitute at least a majority thereof, unless the election, or the nomination for election by the Corporation’s stockholders, of each new Board member director elected during such two-year period was approved nominated or appointed by a vote of at least two-thirds of the Board members Incumbent Directors then still in office who were Board members at and voting (new directors nominated or appointed by two-thirds of the beginning Incumbent Directors shall also be deemed to be Incumbent Directors); or (c) any person (as such term is used in Section 13(d) of such periodthe Securities Exchange Act of 1934 (1934 Act) shall, as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or otherwise, have become the beneficial owner (within the meaning of Rule 13d-3 under the 1934 Act), directly or indirectly, of securities of the Company ordinarily having the right to vote in the election of directors (Voting Securities) representing twenty percent (20%) or more of the combined voting power of the then outstanding Voting Securities.

Acceleration Upon Change in Control. Upon the occurrence of (or, as the circumstances may require, immediately prior to) a Change in Control (as defined below), then any portion of the Stock Units subject to the Award that have not previously vested or terminated shall thereupon vest, unless prior to the Change in Control the Committee determines that benefits under this or other awards will not accelerate upon occurrence of the Change in Control or determines that only certain or limited benefits under some or all awards will be accelerated and the extent to which they will be accelerated, and/or establishes a different time in respect of the Change in Control for such acceleration. The Committee may accord the Participant a right to refuse any acceleration pursuant to this Agreement, in such circumstances as the Committee may approve. For purposes of this Agreement, “"Change in Control” " means any of the following: (a) approval by the stockholders of the Corporation of the dissolution or liquidation of the Corporation; (b) approval by the stockholders of the Corporation of an agreement to merge or consolidate, or otherwise reorganize, with or into one or more entities that are not majority-owned subsidiaries of the Corporation, as a result of which 50% or less of the outstanding voting securities of the surviving or resulting entity are, or are to be, owned by former stockholders of the Corporation; (c) approval by the stockholders of the Corporation of the sale or transfer of substantially all of the Corporation’s 's business and/or assets to a person or entity that is not a Subsidiary of the Corporation; or (d) the occurrence of any of the following: (i) any “"person,” " alone or together with all “"affiliates” " and “"associates” " of such person, without the prior approval of the Board, becomes the “"beneficial owner” " of more than 50% of the outstanding voting securities of the Corporation (the terms “"person,” “" "affiliates,” “" "associates” " and “"beneficial owner” " are used as such terms are used in the Securities Exchange Act of 1934 and the General Rules and Regulations thereunder); provided, however, that “"Change in Control” " shall not be deemed to have occurred if such “"person” " is the Corporation, any Subsidiary or any employee benefit plan or employee stock plan of the Corporation or of any Subsidiary, or any trust or other entity organized, established or holding shares of such voting securities by, for, or pursuant to the terms of any such plan, or any member of or entity or group affiliated with the Lidow family; or (ii) individuals who at the beginning of any period of two consecutive calendar years constitute a majority of the Board cease for any reason, during such period, to constitute at least a majority thereof, unless the election, or the nomination for election by the Corporation’s 's stockholders, of each new Board member was approved by a vote of at least two-thirds of the Board members then still in office who were Board members at the beginning of such period.