Common use of Termination Upon Change in Control Event Clause in Contracts

Termination Upon Change in Control Event. If, within the one-year period commencing on the date of a Change in Control (as defined below): (a) the Company or any successor breaches this Agreement in any material respect (it being acknowledged that a change in the location of the principal offices of the Company beyond that contemplated in Section 1 of this Agreement would be material); (b) the Executive is assigned duties materially inconsistent with his position as contemplated by Section 1 of this Agreement, or a material change occurs in the Executive’s reporting responsibilities, or the Executive’s title, position, duties or responsibilities as contemplated by Section 1 are changed in a material manner; (c) the Executive suffers any material reduction in his compensation (including his benefits), or any material adverse change in his working conditions, and, with respect to (a), (b), or (c) above, the Company fails to cure such action or omission within thirty (30) days after written notice of termination of his employment on account thereof from the Executive; (d) the Executive terminates his employment for Good Reason; or (e) the Executive’s employment hereunder is terminated by the Company without Cause (each a “Change in Control Event”), then the Company shall pay to the Executive in one lump sum promptly following the Change in Control Event an amount equal to the lesser of: (A) three (3) times the amount of the total Base Compensation plus three (3) times the Incentive Compensation paid to the Executive for the calendar year preceding the year in which the Change in Control shall have occurred (or if the Executive shall not have been employed for a full calendar year on the Termination Date, the annualized Incentive Compensation for the preceding calendar year); or (B) the amount described in clause (A) as reduced to the extent necessary to cause the aggregate of all amounts paid to the Executive in connection with (i) a change in ownership or effective control of the Company or (ii) a change in the ownership of a substantial portion of the assets of the Company (if any of the foregoing constitutes an event described in clause (b)(2)(A)(i) of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), taking into account (without limitation) any options, restricted stock, or other compensation the vesting of which is accelerated by reason of the Change in Control Event and subsequent termination of employment, not to exceed 299% of the “base amount” paid to the Executive as such term is defined in Section 280G(b)(3) (or any successor provision). If a Change in Control Event shall occur prior to January 1, 2008, the annualized Incentive Compensation for purposes of clause (A) of the preceding sentence shall be deemed to be $1,850,000. In addition, all options and shares of restricted stock previously granted to the Executive which are unvested as of the date of such termination shall become immediately and fully vested, exercisable and all restrictions thereupon shall lapse, upon such termination of employment. It is intended by the parties to this Agreement that no amount payable to the Executive in connection with his employment hereunder constitute an “excess parachute payment” within the meaning of Section 280G (or any successor provision) of the Code, and this paragraph (iv) shall be interpreted in a manner consistent with such intent.

Termination Upon Change in Control Event. If, within the one-year period commencing on the date of a Change in Control (as defined below): (a) the Company or any successor breaches this Agreement in any material respect (it being acknowledged that a change in the location of the principal offices of the Company beyond that contemplated in Section 1 of this Agreement would be material); (b) the Executive is assigned duties materially inconsistent with his position as contemplated by Section 1 of this Agreement, or a material change occurs in the Executive’s reporting responsibilities, or the Executive’s title, position, duties or responsibilities as contemplated by Section 1 are changed in a material manner; (c) the Executive suffers any material reduction in his compensation (including his benefits), or any material adverse change in his working conditions, and, with respect to (a), (b), or (c) above, the Company fails to cure such action or omission within thirty (30) days after written notice of termination of his employment on account thereof from the Executive; (d) the Executive terminates his employment for Good Reason; or (e) the Executive’s employment hereunder is terminated by the Company without Cause (each a “Change in Control Event”), then the Company shall pay to the Executive in one lump sum promptly following the Change in Control Event an amount equal to the lesser of: (A) three (3) times the amount of the total Base Compensation plus three (3) times the Incentive Compensation paid to the Executive for the calendar year preceding the year in which the Change in Control shall have occurred (or if the Executive shall not have been employed for a full calendar year on the Termination Date, the annualized Incentive Compensation for the preceding calendar year); or (B) the amount described in clause (A) as reduced to the extent necessary to cause the aggregate of all amounts paid to the Executive in connection with (i) a change in ownership or effective control of the Company or (ii) a change in the ownership of a substantial portion of the assets of the Company (if any of the foregoing constitutes an event described in clause (b)(2)(A)(i) of Section 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), taking into account (without limitation) any options, restricted stock, or other compensation the vesting of which is accelerated by reason of the Change in Control Event and subsequent termination of employment, not to exceed 299% of the “"base amount” " paid to the Executive as such term is defined in Section 280G(b)(3) (or any successor provision). If a Change in Control Event shall occur prior to January 1, 2008, the annualized Incentive Compensation for purposes of clause (A) of the preceding sentence shall be deemed to be $1,850,000. In addition, all options and shares of restricted stock previously granted to the Executive which are unvested as of the date of such termination shall become immediately and fully vested, exercisable and all restrictions thereupon shall lapse, upon such termination of employment. It is intended by the parties to this Agreement that no amount payable to the Executive in connection with his employment hereunder constitute an “"excess parachute payment” " within the meaning of Section 280G (or any successor provision) of the Code, and this paragraph (iv) shall be interpreted in a manner consistent with such intent.