Common use of Change of Control Severance Clause in Contracts

Change of Control Severance. 6.5.1. If any of the following occur, upon the Executive’s furnishing to the Company an effective waiver and release of claims (a form of which is attached hereto as Exhibit C), the Company shall pay the Executive Change of Control Severance for the period and in the manner set forth in the definition thereof: (i) the Executive’s employment is terminated pursuant to Section 5.2.1 (With Good Reason) due to a relocation as described in Section 2.13.2; (ii) the Executive’s employment is terminated pursuant to Section 5.1.3 (Without Cause) or Section 5.2.1 (With Good Reason) in connection with a Change of Control or Significant Transaction; or (iii) the employment of 50% or more of the members of the Management Team, including the employment of the Chief Executive Officer, is terminated in connection with a Significant Transaction and, prior to the first anniversary of the effective date of the Significant Transaction, the Executive’s employment is terminated by the Company pursuant to Section 5.1.3 (Without Cause) or Section 5.2.1 (for Good Reason). 6.5.2. In the event there is a Change of Control of the Company and provided Executive is employed by the Company on the first anniversary of the effective date of the Change of Control, Executive shall have an option (exercisable by delivering notice of exercise to the Company) to terminate his or her employment. If the Executive opts to terminate his or her employment pursuant to this Section 6.5.2, at the time of such termination the Company shall pay the Executive Regular Severance for the period and in the manner set forth in the definition thereof. 6.5.3. In the event that any payment received or to be received by the Executive pursuant to this Agreement or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 6.5.3, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, subject to the provisions of Section 6.5.4 hereof, such Payment shall be reduced to the largest amount which would result in no portion of the Payment being subject to the Excise Tax. The determination of any required reduction pursuant to this Section 6.5.3 shall be made by a nationally recognized certified public accounting firm used by the Company immediately prior to the effective date of a change of control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) in its discretion. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. If the Accounting Firm determines that a reduction is required by this Section 6.5.3, the Executive, in his/her discretion, may determine which portion of the Payment shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company shall pay such reduced amount to him/her. If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then Section 6.5.4 hereof shall apply, and the enforcement of Section 6.5.4 shall be the exclusive remedy to the Company for a failure by the Executive to reduce the Payment so that no portion thereof is subject to the Excise Tax. 6.5.4. If, notwithstanding any reduction described in Section 6.5.3 (or in the absence of any such reduction), the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of a Payment, then the Executive shall be obligated to pay back to the Company, within thirty (30) days after final IRS determination, an amount of the Payment equal to the “Repayment Amount”. The Repayment Amount with respect to a Payment shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Executive’s net proceeds with respect to any Payment (after taking into account the payment of the Excise Tax imposed on such Payment) shall be maximized. If the Excise Tax is not eliminated pursuant to this Section 6.5.4, the Executive shall pay the Excise Tax.

Change of Control Severance. 6.5.1. If any of the following occur, upon the Executive’s furnishing to the Company an effective waiver and release of claims (a form of which is attached hereto as Exhibit C), the Company shall pay the Executive Change of Control Severance for the period and in the manner set forth in the definition thereof: (i) the Executive’s employment is terminated pursuant to Section 5.2.1 (With Good Reason) due to a relocation as described in Section 2.13.2;; or (ii) the Executive’s employment is terminated pursuant to Section 5.1.3 (Without Cause) or Section 5.2.1 (With Good Reason) in connection with a Change of Control or Significant Transaction; or (iii) the employment of 50% or more of the members of the Management Team, including the employment of the Chief Executive Officer, is terminated in connection with a Significant Transaction and, prior to the first anniversary of the effective date of the Significant Transaction, the Executive’s employment is terminated by the Company pursuant to Section 5.1.3 (Without Cause) or Section 5.2.1 (for Good Reason). 6.5.2. In the event there is a Change of Control of the Company and provided Executive is employed by the Company on the first anniversary of the effective date of the Change of Control, Executive shall have an option (exercisable by delivering notice of exercise to the Company) to terminate his or her employment. If the Executive opts to terminate his or her employment pursuant to this Section 6.5.2, at the time of such termination the Company shall pay the Executive Regular Severance for the period and in the manner set forth in the definition thereof. 6.5.3. In the event that any payment received or to be received by the Executive pursuant to this Agreement or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (ii) but for this Section 6.5.3, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then, subject to the provisions of Section 6.5.4 hereof, such Payment shall be reduced to the largest amount which would result in no portion of the Payment being subject to the Excise Tax. The determination of any required reduction pursuant to this Section 6.5.3 shall be made by a nationally recognized certified public accounting firm used by the Company immediately prior to the effective date of a change of control or, if such firm declines to serve, such other nationally recognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) in its discretion. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. If the Accounting Firm determines that a reduction is required by this Section 6.5.3, the Executive, in his/her discretion, may determine which portion of the Payment shall be reduced to the extent necessary so that no portion thereof shall be subject to the Excise Tax, and the Company shall pay such reduced amount to him/her. If the Internal Revenue Service (the “IRS”) determines that a Payment is subject to the Excise Tax, then Section 6.5.4 hereof shall apply, and the enforcement of Section 6.5.4 shall be the exclusive remedy to the Company for a failure by the Executive to reduce the Payment so that no portion thereof is subject to the Excise Tax. 6.5.4. If, notwithstanding any reduction described in Section 6.5.3 (or in the absence of any such reduction), the IRS determines that the Executive is liable for the Excise Tax as a result of the receipt of a Payment, then the Executive shall be obligated to pay back to the Company, within thirty (30) days after final IRS determination, an amount of the Payment equal to the “Repayment Amount”. The Repayment Amount with respect to a Payment shall be the smallest such amount, if any, as shall be required to be paid to the Company so that the Executive’s net proceeds with respect to any Payment (after taking into account the payment of the Excise Tax imposed on such Payment) shall be maximized. If the Excise Tax is not eliminated pursuant to this Section 6.5.4, the Executive shall pay the Excise Tax.