Common use of Upon a Change of Control Clause in Contracts

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his employment for Good Reason, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release signed by the Executive is received by the Chair of the Board, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen (18) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board receives the Employee Release, signed by the Executive. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunder.

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, and within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his employment for Good Reason, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release Release, signed by the Executive Executive, is received by the Chair of the Board▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) two times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen twenty-four (1824) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ receives the Employee Release, signed by the Executive. Further, on the later of the effective date of the Employee Release or the date ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ receives the Employee Release, signed by the Executive, the Company shall provide for the accelerated vesting of the Accelerated Stock Award. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunder. (ii) The Company and the Executive agree that in the event any of the payments or benefits received or to be received by the Executive in connection with a Change of Control or Executive’s termination from employment under this Section 5(g) (the “Change of Control Payments”) might be characterized as parachute payments under Section 280G of the Internal Revenue Code of 1986 (the “Code”), as amended (“Section 280G”), the parties shall timely take reasonable steps to avoid the tax liability under Section 280G and Section 4999 of the Code to the extent permitted by law. Accordingly, the Executive agrees to cooperate fully in procuring a shareholder vote (including, but not limited to, providing any required consents or waivers) to approve the Change of Control Payments in satisfaction of the shareholder approval requirements described in Treas. Reg. Section 1.280G-1, Q&A-7, to the extent applicable. If the shareholder approval required by Treas. Reg. Section 1.280G-1, Q&A-7 cannot be obtained and it is determined that any of the Change of Control Payments received or to be received by the Executive would be subject to the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax (the “Excise Tax”), then the Company will, prior to the date, on which any amount of the Excise Tax must be paid or withheld, make an additional lump sum payment (the “gross up payment”) to the Executive. The gross up payment will be sufficient, after giving effect to all federal, state, and other taxes and charges (including interest and penalties, if any) with respect to the gross up payment, to make the Executive whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of Section 4999. Determinations under this Section 5(g)(ii) will be made by the Company’ s independent auditors unless the Executive has reasonable objections to the use of that firm, in which case the determinations will be made by a comparable firm chosen by the Executive after consultation with the Company (the firm making the determinations to be referred to as the “Firm”). The determinations of the Firm will be binding upon the Company and the Executive except as the determinations are established in resolution (including by settlement) of a controversy with the Internal Revenue Service to have been incorrect. All fees and expenses of the Firm will be paid by the Company. If the Internal Revenue Service asserts a claim that, if successful, would require the Company to make a gross up payment or an additional gross up payment, the Company and the Executive will cooperate fully in resolving the controversy with the Internal Revenue Service. The Company will make or advance such gross up payments as are necessary to prevent the Executive from having to bear the cost of the payments to the Internal Revenue Service in the course of, or as a result of, the controversy. The Firm will determine the amount of such gross up payments or advances and will determine after resolution of the controversy whether any advances must be returned by the Executive to the Company. The Company will bear all fees and expenses of the controversy (including fees and expenses incurred by the Executive with the prior written approval of the Company) and will gross the Executive up for any additional taxes that may be imposed upon the Executive as a result of its payment of such expenses. If all or a portion of such fees and expenses are initially paid by the Executive with the prior written approval of the Company, the Company shall reimburse the Executive for the amount of such fees and expenses within thirty (30) days of receipt from the Executive of a statement therefor in reasonable detail and evidencing payment thereof by the Executive. Any personal income tax information of the Executive that is required to be provided to the Company by the Executive under this Section 5(g) shall be treated as confidential information by the Company and, except as otherwise required by applicable law, rule or regulation (or in connection with any proceeding or other communication with the Internal Revenue Service), shall not be disclosed by the Company to any person, other than the Company’s employees, officers, directors and professional advisors, without the Executive’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, the Company and the Company’s representatives may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to the Company relating to such tax treatment and tax structure, all as contemplated by Treasury Regulation Section 1.6011-4(b)(3)(iii).

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, and within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his employment for Good Reason, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release Release, signed by the Executive Executive, is received by the Chair of the Board, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen twelve (1812) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board receives the Employee Release, signed by the Executive. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and and, except for Final Compensation, any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunderhereunder and by the deadline specified therein and returning it to the Company within thirty (30) calendar days of the date of termination of employment.

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, and within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his employment for Good Reason, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release Release, signed by the Executive Executive, is received by the Chair of the Board, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen twelve (1812) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option Awards to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option Awards as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board receives the Employee Release, signed by the Executive. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and and, except for Final Compensation, any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunderhereunder and by the deadline specified therein and returning it to the Company within thirty (30) calendar days of the date of termination of employment.

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, and (1) within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his employment for Good Reason, or (2) if the Executive is not the President and Chief Executive Officer of the Company following such Change of Control (or, if the Company is not the surviving company and the parent company following such Change of Control, such surviving company or parent company, as applicable) and the Executive terminates his employment for any reason during the Window Period, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release Release, signed by the Executive Executive, is received by the Chair of the BoardW. ▇▇▇▇▇▇ ▇▇▇▇, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) three times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen thirty-six (1836) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board W. ▇▇▇▇▇▇ ▇▇▇▇ receives the Employee Release, signed by the Executive. Further, on the later of the effective date of the Employee Release or the date W. ▇▇▇▇▇▇ ▇▇▇▇ receives the Employee Release, signed by the Executive, the Company shall provide for the Accelerated Stock Award. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunder. For purposes of this Section 5(g)(i), “Window Period” shall mean the thirty day period commencing on the date that is 180 days after the date of consummation of the Change of Control and ending on the date that is 210 days after the date of consummation of the Change of Control. (ii) The Company and the Executive agree that in the event any of the payments or benefits received or to be received by the Executive in connection with a Change of Control or Executive’s termination from employment under this Section 5(g) (the “Change of Control Payments”) might be characterized as parachute payments under Section 280G of the Internal Revenue Code of 1986 (the “Code”), as amended (“Section 280G”), the parties shall timely take reasonable steps to avoid the tax liability under Section 280G and Section 4999 of the Code to the extent permitted by law. Accordingly, the Executive agrees to cooperate fully in procuring a shareholder vote (including, but not limited to, providing any required consents or waivers) to approve the Change of Control Payments in satisfaction of the shareholder approval requirements described in Treas. Reg. Section 1.280G-1, Q&A-7, to the extent applicable. If the shareholder approval required by Treas. Reg. Section 1.280G-1, Q&A-7 cannot be obtained and it is determined that any of the Change of Control Payments received or to be received by the Executive would be subject to the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax (the “Excise Tax”), then the Company will, prior to the date, on which any amount of the Excise Tax must be paid or withheld, make an additional lump sum payment (the “gross up payment”) to the Executive. The gross up payment will be sufficient, after giving effect to all federal, state, and other taxes and charges (including interest and penalties, if any) with respect to the gross up payment, to make the Executive whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of Section 4999. Determinations under this Section 5(g)(ii) will be made by the Company’ s independent auditors unless the Executive has reasonable objections to the use of that firm, in which case the determinations will be made by a comparable firm chosen by the Executive after consultation with the Company (the firm making the determinations to be referred to as the “Firm”). The determinations of the Firm will be binding upon the Company and the Executive except as the determinations are established in resolution (including by settlement) of a controversy with the Internal Revenue Service to have been incorrect. All fees and expenses of the Firm will be paid by the Company. If the Internal Revenue Service asserts a claim that, if successful, would require the Company to make a gross up payment or an additional gross up payment, the Company and the Executive will cooperate fully in resolving the controversy with the Internal Revenue Service. The Company will make or advance such gross up payments as are necessary to prevent the Executive from having to bear the cost of the payments to the Internal Revenue Service in the course of, or as a result of, the controversy. The Firm will determine the amount of such gross up payments or advances and will determine after resolution of the controversy whether any advances must be returned by the Executive to the Company. The Company will bear all expenses of the controversy and will gross the Executive up for any additional taxes that may be imposed upon the Executive as a result of its payment of such expenses.

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his her employment for Good Reason, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release signed by the Executive is received by the Chair of the Board, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen (18) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board receives the Employee Release, signed by the Executive. Further, on the later of the effective date of the Employee Release or the date the Chair of the Board receives the Employee Release, signed by the Executive, the Company shall provide for the Accelerated Stock Award. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunder. (ii) The Company and the Executive agree that in the event any of the payments or benefits received or to be received by the Executive in connection with a Change of Control or Executive’s termination from employment under this Section 5(g) (the “Change of Control Payments”) might be characterized as parachute payments under Section 280G of the Internal Revenue Code of 1986 (the “Code”), as amended (“Section 280G”), the parties shall timely take reasonable steps to avoid the tax liability under Section 280G and Section 4999 of the Code to the extent permitted by law. Accordingly, the Executive agrees to cooperate fully in procuring a shareholder vote (including, but not limited to, providing any required consents or waivers) to approve the Change of Control Payments in satisfaction of the shareholder approval requirements described in Treas. Reg. Section 1.280G-1, Q&A-7, to the extent applicable. If the shareholder approval required by Treas. Reg. Section 1.280G-1, Q&A-7 cannot be obtained and it is determined that any of the Change of Control Payments received or to be received by the Executive would be subject to the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax (the “Excise Tax”), then the Company will, prior to the date, on which any amount of the Excise Tax must be paid or withheld, make an additional lump sum payment (the “gross up payment”) to the Executive. The gross up payment will be sufficient, after giving effect to all federal, state, and other taxes and charges (including interest and penalties, if any) with respect to the gross up payment, to make the Executive whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of Section 4999. Determinations under this Section 5(g)(ii) will be made by the Company’ s independent auditors unless the Executive has reasonable objections to the use of that firm, in which case the determinations will be made by a comparable firm chosen by the Executive after consultation with the Company (the firm making the determinations to be referred to as the “Firm”). The determinations of the Firm will be binding upon the Company and the Executive except as the determinations are established in resolution (including by settlement) of a controversy with the Internal Revenue Service to have been incorrect. All fees and expenses of the Firm will be paid by the Company. If the Internal Revenue Service asserts a claim that, if successful, would require the Company to make a gross up payment or an additional gross up payment, the Company and the Executive will cooperate fully in resolving the controversy with the Internal Revenue Service. The Company will make or advance such gross up payments as are necessary to prevent the Executive from having to bear the cost of the payments to the Internal Revenue Service in the course of, or as a result of, the controversy. The Firm will determine the amount of such gross up payments or advances and will determine after resolution of the controversy whether any advances must be returned by the Executive to the Company. The Company will bear all expenses of the controversy and will gross the Executive up for any additional taxes that may be imposed upon the Executive as a result of its payment of such expenses.

Upon a Change of Control. (i) If a Change of Control occurs hereafter and, within twelve months following such Change of Control, the Company terminates the Executive’s employment other than for Cause or the Executive terminates his employment for Good Reason, then, in lieu of any payments to or on behalf of the Executive under Section 5(d) or Section 5(e) hereof, and provided that the Executive signs a timely and effective Employee Release following termination of employment, within ten business days following the later of the effective date of the Employee Release or the date the Employee Release signed by the Executive is received by the Chair of the Board, the Company shall pay (A) all Final Compensation; (B) a lump sum payment to the Executive equal to one and one-half (1.5) times the current annual Base Salary; (C) the full cost of the Executive’s continued participation in the Company’s group health and dental insurance plans for so long as the Executive remains entitled to continue such participation under applicable law, to a maximum of eighteen twelve (1812) months; and (D) a lump sum amount to the Executive equal to the Termination Bonus. In addition, the Board shall cause the Accelerated Option to vest on the date the Executive’s employment terminates, and the Executive may exercise the Accelerated Option as of the date immediately following the later of (i) the effective date of the Employee Release or (ii) the date that the Chair of the Board receives the Employee Release, signed by the Executive. Further, on the later of the effective date of the Employee Release or the date the Chair of the Board receives the Employee Release, signed by the Executive, the Company shall provide for the Accelerated Stock Award. In the event of termination hereunder, payment by the Company of any amounts that may be due the Executive under this Section 5(g) shall constitute the entire obligation of the Company to the Executive and any obligation of the Company to the Executive hereunder is conditioned upon the Executive signing a timely and effective Employee Release following termination of the Executive’s employment hereunder. (ii) The Company and the Executive agree that in the event any of the payments or benefits received or to be received by the Executive in connection with a Change of Control or Executive’s termination from employment under this Section 5(g) (the “Change of Control Payments”) might be characterized as parachute payments under Section 280G of the Internal Revenue Code of 1986 (the “Code”), as amended (“Section 280G”), the parties shall timely take reasonable steps to avoid the tax liability under Section 280G and Section 4999 of the Code to the extent permitted by law. Accordingly, the Executive agrees to cooperate fully in procuring a shareholder vote (including, but not limited to, providing any required consents or waivers) to approve the Change of Control Payments in satisfaction of the shareholder approval requirements described in Treas. Reg. Section 1.280G-1, Q&A-7, to the extent applicable. If the shareholder approval required by Treas. Reg. Section 1.280G-1, Q&A-7 cannot be obtained and it is determined that any of the Change of Control Payments received or to be received by the Executive would be subject to the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax (the “Excise Tax”), then the Company will, prior to the date, on which any amount of the Excise Tax must be paid or withheld, make an additional lump sum payment (the “gross up payment”) to the Executive. The gross up payment will be sufficient, after giving effect to all federal, state, and other taxes and charges (including interest and penalties, if any) with respect to the gross up payment, to make the Executive whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of Section 4999. Determinations under this Section 5(g)(ii) will be made by the Company’ s independent auditors unless the Executive has reasonable objections to the use of that firm, in which case the determinations will be made by a comparable firm chosen by the Executive after consultation with the Company (the firm making the determinations to be referred to as the “Firm”). The determinations of the Firm will be binding upon the Company and the Executive except as the determinations are established in resolution (including by settlement) of a controversy with the Internal Revenue Service to have been incorrect. All fees and expenses of the Firm will be paid by the Company. If the Internal Revenue Service asserts a claim that, if successful, would require the Company to make a gross up payment or an additional gross up payment, the Company and the Executive will cooperate fully in resolving the controversy with the Internal Revenue Service. The Company will make or advance such gross up payments as are necessary to prevent the Executive from having to bear the cost of the payments to the Internal Revenue Service in the course of, or as a result of, the controversy. The Firm will determine the amount of such gross up payments or advances and will determine after resolution of the controversy whether any advances must be returned by the Executive to the Company. The Company will bear all expenses of the controversy and will gross the Executive up for any additional taxes that may be imposed upon the Executive as a result of its payment of such expenses.