Common use of Impact of Change in Control Clause in Contracts

Impact of Change in Control. (i) If Executive’s employment is terminated by the Company without Cause or Executive resigns for Good Reason within three months prior to, or within 12 months following, the consummation of a Change in Control of the Company, Executive shall be entitled to receive the Accrued Compensation and the additional payments and benefits set forth in Section 5(c) hereof on the same terms and conditions, including the execution and effectiveness of the Release by the Release Deadline, provided that all Equity Awards subject to time-based vesting then held by Executive shall vest with respect to 100% of the shares underlying such Equity Awards with such additional acceleration effective on the Release Deadline following the later of such termination or the consummation of the Change in Control. (ii) In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), Executive’s payments and benefits under this Agreement shall be either (A) delivered in full or (B) delivered as to such lesser extent as would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. (iii) Unless the Company and Executive otherwise agree in writing, any determination required under subsection (ii) above shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5(d)(iii), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make such determination. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5(d)(iii). Any reduction in payments or benefits required by this Section 5(d)(iii) shall occur in a manner necessary to provide Executive with the greatest economic benefit. If more than one manner of reduction of payments or benefits yields the greatest economic benefit, the payments and benefits shall be reduced pro rata, provided that the reduction shall be applied first to any payments or benefits that are not subject to Section 409A and then shall be applied to payments or benefits (if any) that are subject to Section 409A, with the payments or benefits payable latest in time subject to reduction first. To the extent required to avoid a violation of Section 409A of the Code, in no event shall the Company or Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5(d)(iii).

Impact of Change in Control. (i) If Executive’s employment is terminated by the Company without Cause or Executive resigns for Good Reason within three months prior to, or within 12 months following, the consummation of a Change in Control of the Company, Executive shall be entitled to receive the Accrued Compensation and the additional payments and benefits set forth in Section 5(c) hereof on the same terms and conditions, including the execution and effectiveness of the Release by the Release Deadline, provided that all Equity Awards subject to time-based vesting then held by Executive shall vest with respect to 100% of the shares underlying such Equity Awards with such additional acceleration effective on the Release Deadline following the later of such termination or the consummation of the Change in Control. (ii) In the event that the payments and other benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), Executive’s payments and benefits under this Agreement shall be either (A) delivered in full or (B) delivered as to such lesser extent as would result in no portion of such payments and benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes and the Excise Tax, results in the receipt by Executive on an after-tax basis of the greatest amount of payments and benefits, notwithstanding that all or some portion of such payments and benefits may be taxable under Section 4999 of the Code. (iii) Unless the Company and Executive otherwise agree in writing, any determination required under subsection (ii) above shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 5(d)(iii5(e)(iii), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make such determination. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5(d)(iii5(e)(iii). Any reduction in payments or benefits required by this Section 5(d)(iii5(e)(iii) shall occur in a manner necessary to provide Executive with the greatest economic benefit. If more than one manner of reduction of payments or benefits yields the greatest economic benefit, the payments and benefits shall be reduced pro rata, provided that the reduction shall be applied first to any payments or benefits that are not subject to Section 409A and then shall be applied to payments or benefits (if any) that are subject to Section 409A, with the payments or benefits payable latest in time subject to reduction first. To the extent required to avoid a violation of Section 409A of the Code, in no event shall the Company or Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant to this Section 5(d)(iii5(e)(iii).