Common use of Termination Due to a Change in Control Clause in Contracts

Termination Due to a Change in Control. (i) Upon the termination of the Executive’s employment hereunder due to a Termination due to a Change in Control, neither the Executive nor his beneficiary or estate shall have any further rights or claims against the Company under this Agreement or otherwise, except the Accrued Rights and the Change in Control Severance Payments as provided herein. The Accrued Rights shall be paid to the Executive immediately upon termination or as otherwise provided pursuant to the applicable plan, practice, program or arrangement. In consideration for the Change in Control Severance Payments, and as a condition of the receipt thereof, the Executive agrees to execute a release releasing the Company and its Affiliates from all actions, claims, demands, causes of action, obligations, damages, liabilities, expenses and controversies of any nature, excluding those arising in connection with the enforcement of Executive’s indemnification rights. Such release must become effective on or before March 15th of the calendar year next following the calendar year in which such termination occurs. Provided the release becomes so effective, the Severance Payments shall be paid to the Executive (and full vesting with respect to stock options, restricted stock awards or other types of equity-based compensation shall occur) upon the effective date of the release (and no later than such March 15th date). (ii) Notwithstanding any other provisions of this Agreement, if any of the benefits and payments provided under this Agreement, either alone or together with other benefits and payments which the Executive has the right to receive either directly or indirectly from the Company or any of its Affiliates, would constitute an excess parachute payment (the “Excess Payment”) under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), the Executive hereby agrees that the benefits and payments provided under this Agreement shall be reduced (but not below zero) by the amount necessary to prevent any such benefits and payments to the Executive from constituting an Excess Payment; provided, however, that such reduction shall be made only if, by reason of such reduction, the Executive’s net after-tax economic benefit shall exceed the net after-tax economic benefit to the Executive if such reduction were not made. (iii) All determinations required to be made under clause (ii) of this Section 10(d), and the assumptions to be utilized in arriving at such determination, shall be made by the certified public accounting firm used for auditing purposes by the Company immediately prior to the date of termination or, if the parties determine that the certified public accounting firm used for auditing purposes by the Company immediately prior to the date of termination cannot make such determination because of legal restrictions, the parties shall agree on a different certified public accounting firm (such certified public accounting firm is hereinafter referred to as the “Accounting Firm”), which shall promptly provide detailed supporting calculations both to the Company and the Executive. The Company shall pay all fees and expenses of the Accounting Firm.