Common use of Calculation of Change in Control Payments Clause in Contracts

Calculation of Change in Control Payments. If a Change in Control occurs and, either [1] during the Effective Period or within six (6) months prior to the Change in Control, the Company provides the Employee with a Notice of Termination stating that it is Terminating the Employee’s employment without Cause, or [2] during the Effective Period, the Employee provides the Company with a Notice of Termination stating that the Employee is Terminating his employment for Good Reason, then the Company will: [a] Continue to pay the Employee’s compensation and other benefits through the Date of Termination and also will pay the Employee the value of any unused vacation days determined under the Company’s personnel policy. The amounts attributable to unused vacation will be paid no later than thirty (30) days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within thirty (30) days after the Change in Control). [b] Continue coverage for the Employee and his dependents, at no cost to either the Employee or his dependents, in all programs subject to the benefit provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for the period beginning on the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, the date of the Change in Control) and ending on the earlier of [i] the date the Employee and his dependents acquire replacement coverage or [ii] the second anniversary of the Employee's Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, the second anniversary of the Change in Control). In the event the Employee's or his dependents' participation in the Company's plans is not permitted, then the Company will provide, through insurance or otherwise, at no after-tax cost to the Employee or his dependents, the benefits to which the Employee or his dependents would be entitled under such plans (such benefits, collectively, the "Medical Benefits"). Any Medical Benefits to be paid or provided under this Section 2.01[2][b] after completion of the time period described in Treasury Regulation §1.409A-1(b)(9)(v)(B) shall be subject to the following: [A] the amount of expenses eligible for reimbursement, or benefits provided, during any taxable year of the Employee may not affect the expenses eligible for reimbursement, or benefits to be provided, to the Employee in any other taxable year; [B] reimbursement of any eligible expense must be made on or before the last day of the Employee's taxable year following the taxable year in which the expense is incurred; and [C] the right to reimbursement or benefits is not subject to liquidation or exchange for another benefit. In addition, any tax gross-up payment due to the Employee under this subsection shall be made by the end of the Employee's taxable year next following the Employee's taxable year in which the Employee remits the related taxes. [c] Pay the Employee a lump sum equal to the amount described in this subsection. This payment will be made no more than sixty (60) days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within sixty (60) days after the Change in Control). The amount payable under this subsection will be the sum of: [i] two hundred (200) percent of the Employee’s base salary in effect at the Employee’s Date of Termination (or, if greater, the Employee's base salary in effect immediately prior to any event described in Section 1.09[4][a]); plus [ii] two hundred (200) percent of the average annual bonus earned by the Employee during the five (5) fiscal years of the Company immediately preceding the Employee's Date of Termination; plus [iii] a pro-rated amount of the annual bonus (if any) which the Employee is eligible to receive with respect to the fiscal year in which the Date of Termination occurs calculated based on [A] the Company's and/or the Employee's achievement (as applicable) of the performance goals applicable to the Employee's bonus for such fiscal year assuming that such fiscal year ended on the last day of the month immediately preceding the Date of Termination (with the applicable performance goals adjusted on a pro-rata basis to account for the partial fiscal year) and [B] the number of full calendar months that have elapsed in the fiscal year in which the Date of Termination occurs. Such amount shall be calculated by the Compensation Committee of the Board in good faith and, subject to Section 4.01, shall be final and binding on the parties. [d] Provide any other benefits (including change in control benefits) to which the Employee is entitled under any other plan, program or agreement with the Company or any of its affiliates. Such benefits shall be provided in accordance with the terms of the applicable plan, program or agreement. [e] If appropriate, pay the additional amount described in Section 2.02.

Calculation of Change in Control Payments. If a Change in Control occurs and, either [1] during the Effective Period or within six (6) months prior to the Change in Control, the Company provides the Employee with a Notice of Termination stating that it is Terminating the Employee’s employment without Cause, or [2] during the Effective Period, the Employee provides the Company with a Notice of Termination stating that the Employee is Terminating his employment for Good Reason, then the Company will: [a] Continue to pay the Employee’s compensation and other benefits through the Date of Termination and also will pay the Employee the value of any unused vacation days determined under the Company’s personnel policy. The amounts attributable to unused vacation will be paid no later than thirty (30) days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within thirty (30) days after the Change in Control). [b] Continue coverage for the Employee and his dependents, at no cost to either the Employee or his dependents, in all programs subject to the benefit provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for the period beginning on the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, the date of the Change in Control) and ending on the earlier of [i] the date the Employee and his dependents acquire replacement coverage or [ii] the second anniversary of the Employee's Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, the second anniversary of the Change in Control). In the event the Employee's or his dependents' participation in the Company's plans is not permitted, then the Company will provide, through insurance or otherwise, at no after-tax cost to the Employee or his dependents, the benefits to which the Employee or his dependents would be entitled under such plans (such benefits, collectively, the "Medical Benefits"). Any Medical Benefits to be paid or provided under this Section 2.01[2][b] after completion of the time period described in Treasury Regulation §1.409A-1(b)(9)(v)(B) shall be subject to the following: [A] the amount of expenses eligible for reimbursement, or benefits provided, during any taxable year of the Employee may not affect the expenses eligible for reimbursement, or benefits to be provided, to the Employee in any other taxable year; [B] reimbursement of any eligible expense must be made on or before the last day of the Employee's taxable year following the taxable year in which the expense is incurred; and [C] the right to reimbursement or benefits is not subject to liquidation or exchange for another benefit. In addition, any tax gross-up payment due to the Employee under this subsection shall be made by the end of the Employee's taxable year next following the Employee's taxable year in which the Employee remits the related taxes. [c] Pay the Employee a lump sum equal to the amount described in this subsection. This payment will be made no more than sixty (60) days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within sixty (60) days after the Change in Control). The amount payable under this subsection will be the sum of: [i] two hundred ninety-nine (200299) percent of the Employee’s base salary in effect at the Employee’s Date of Termination (or, if greater, the Employee's base salary in effect immediately prior to any event described in Section 1.09[4][a]); plus [ii] two hundred ninety-nine (200299) percent of the average annual bonus earned by the Employee during the five (5) fiscal years of the Company immediately preceding the Employee's Date of Termination; plus [iii] a pro-rated amount of the annual bonus (if any) which the Employee is eligible to receive with respect to the fiscal year in which the Date of Termination occurs calculated based on [A] the Company's and/or the Employee's achievement (as applicable) of the performance goals applicable to the Employee's bonus for such fiscal year assuming that such fiscal year ended on the last day of the month immediately preceding the Date of Termination (with the applicable performance goals adjusted on a pro-rata basis to account for the partial fiscal year) and [B] the number of full calendar months that have elapsed in the fiscal year in which the Date of Termination occurs. Such amount shall be calculated by the Compensation Committee of the Board in good faith and, subject to Section 4.01, shall be final and binding on the parties. [d] Provide any other benefits (including change in control benefits) to which the Employee is entitled under any other plan, program or agreement with the Company or any of its affiliates. Such benefits shall be provided in accordance with the terms of the applicable plan, program or agreement. [e] If appropriate, pay the additional amount described in Section 2.02.

Calculation of Change in Control Payments. If a Change in Control occurs and, either [1] during the Effective Period or within six (6) months prior Subject to the Change in Controlterms of this Agreement, if the Executive is Terminated under Section 4.03[2], 4.04 or 4.05, the Company provides Corporation (or the Employee with a Notice of Termination stating that it is Terminating the Employee’s employment without Cause, or [2] during the Effective Period, the Employee provides the Company with a Notice of Termination stating that the Employee is Terminating his employment for Good Reason, then the Company Employer) will: [a1] Continue to pay the EmployeeExecutive’s compensation and other benefits through the Date of Termination and also will pay the Employee Executive the value of any unused vacation and compensation days determined under the CompanyEmployer’s personnel policy. The These amounts attributable to unused vacation will be paid no later than thirty (30) 30 days after the EmployeeExecutive’s Date of Termination and will be based on the rate of compensation and value of benefits in effect before the Notice of Termination was delivered. [2] Pay to the Executive an amount equal to the sum of: [a] 299 percent of the Executive’s “base amount” as defined under Code §280G [whether or not the Change in Control generating benefits under this Agreement is a “change in control” as defined under Code §280G]; plus b] An additional amount equal to: [i] The annual cash bonus paid to the Executive by all Group Members averaged over the three full fiscal years ending before the Date of Termination (or, if shorter, over the full period of the Executive’s employment by all Group Members); multiplied by [ii] The number of days between the Executive’s Date of Termination and the last day of the Corporation’s last complete fiscal year ending before that Date of Termination; and divided by [iii] 365 days. Subject to Sections 5.02 and 5.03[4], the amount payable under this subsection [2] will be paid in separate, equal monthly payments over a twenty-four month period, beginning no more than 30 days after the Executive’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within thirty (30) days after the Change in Control). [b] Continue coverage for the Employee and his dependents, at no cost to either the Employee or his dependents, in all programs subject to the benefit provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for the period beginning on the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Controlif later, the date of the Change in Control) and ending on the earlier of [i] the date the Employee and his dependents acquire replacement coverage or [ii] the second anniversary of the Employee's Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, the second anniversary occurrence of the Change in Control). In The first monthly payment under this subsection will be accompanied by a Notice of Payment. [3] For 36 months after the event Executive’s Date of Termination, the Employee's Corporation also will maintain (or his dependents' participation cause the Employer to maintain) in full force and effect, for the Executive’s continued benefit (and that of all family members and other dependents who were enrolled in the Company's plans is programs on the Executive’s Date of Termination) all life, medical and dental insurance programs in which the Executive (or members of the Executive’s family or other dependents) was participating or was covered immediately before the Executive’s Date of Termination. If the terms of any of the programs just described do not permitted, then allow the Company will provide, through insurance or otherwise, at no after-tax cost to continued participation described in the Employee or his dependentspreceding sentence, the Corporation (or the Employer) will [a] provide benefits that are substantially similar (including eligibility conditions, conditions on benefits, the value of benefits and the scope of coverage) to those provided by the life, medical and dental insurance programs in which the Employee Executive, members of the Executive’s family and dependents were participating immediately before the Executive’s Date of Termination and [b] ensure that any eligibility or his dependents would other conditions on benefits under these programs, including deductibles and co-payments, will be entitled administered by applying the Executive’s experience under such plans any predecessor program in which the Executive (such benefits, collectively, or members of the "Medical Benefits")Executive’s family and dependents) were participating before Termination. Any Medical Benefits With respect to be paid or provided under this Section 2.01[2][b] 5.01[3], any benefits or payments relating to medical and dental insurance that are provided after completion of the time applicable continuation period described in Treasury Regulation §1.409A-1(b)(9)(v)(B) permitted under the Consolidated Omnibus Budget Reconciliation Act, as amended, and any benefits or payments relating to life insurance shall be subject to the following: [Ai] the amount of expenses eligible for reimbursement, benefits or benefits provided, payments provided during any taxable year of the Employee Executive may not affect the expenses eligible for reimbursement, benefits or benefits payments to be provided, provided to the Employee Executive in any other taxable year; [Bii] reimbursement of any eligible expense must be made on or before the last day of the Employee's Executive’s taxable year following the taxable year in which the expense is was incurred; and [Ciii] the right to reimbursement such benefits or benefits payments is not subject to liquidation or exchange for another benefitbenefit or payment. In addition, any tax gross-up payment due addition to the Employee under this subsection shall be made by the end of the Employee's taxable year next following the Employee's taxable year in which the Employee remits the related taxes. [c] Pay the Employee a lump sum equal to the amount payments and benefits described in this subsection. This payment will be made no more than sixty (60) days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within sixty (60) days after the Change in Control). The amount payable under this subsection will be the sum of: [i] two hundred (200) percent of the Employee’s base salary in effect at the Employee’s Date of Termination (or, if greaterabove, the Employee's base salary in effect immediately prior to any event described in Section 1.09[4][a]); plus [ii] two hundred (200) percent of the average annual bonus earned by the Employee during the five (5) fiscal years of the Company immediately preceding the Employee's Date of Termination; plus [iii] a pro-rated amount of the annual bonus (if any) which the Employee is eligible to Executive shall receive with respect to the fiscal year in which the Date of Termination occurs calculated based on [A] the Company's and/or the Employee's achievement (as applicable) of the performance goals applicable to the Employee's bonus for such fiscal year assuming that such fiscal year ended on the last day of the month immediately preceding the Date of Termination (with the applicable performance goals adjusted on a pro-rata basis to account for the partial fiscal year) and [B] the number of full calendar months that have elapsed in the fiscal year in which the Date of Termination occurs. Such amount shall be calculated by the Compensation Committee of the Board in good faith and, subject to Section 4.01, shall be final and binding on the parties. [d] Provide any other benefits (including change in control benefits) benefits to which the Employee Executive is entitled under any other plan, program or agreement with the Company or any of its affiliatesGroup Member. Such benefits shall be provided in accordance with the terms and conditions of the applicable plan, program or agreement. [e] If appropriate, pay the additional amount described in Section 2.02.

Calculation of Change in Control Payments. If a Change in Control occurs and, either [1] during the Effective Period or within six (6) months prior Subject to the Change in Controlterms of this Agreement and the restrictions imposed under Code Section 409A, the Company provides the Employee with a Notice of Termination stating that it is Terminating the Employee’s employment without Cause, or [2] during the Effective Period, the Employee provides the Company with a Notice of Termination stating that if the Employee is Terminating his employment for Good ReasonTerminated (or deemed Terminated) under Section 4.05 or 4.06, then the Corporation or the Company (or the Employer) will: [a1] Continue to pay the Employee’s 's compensation and other benefits through the Date of Termination and also will pay the Employee the value of any unused vacation days determined under the Company’s Employer's personnel policy. The amounts attributable to unused vacation [a] will equal the Employee's annualized base salary at Termination divided by 260 and multiplied by the number of unused vacation days, [b] will be paid no later than thirty (30) 30 days after the Employee’s 's Date of Termination (or, and [c] will be based on the rate of compensation and value of benefits in effect before the case in which employment is Terminated within six (6) months prior to Notice of Termination was delivered; [2] Reimburse the Change in Control, within thirty (30) days after the Change in Control). [b] Continue coverage Employee for the Employee and his dependents, at no cost to either the Employee or his dependents, of continued participation in all programs subject to the benefit provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 1993 (“"COBRA”") for the period beginning on the Employee’s 's Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, the date of the Change in Control) and ending on the earlier of [ia] the date the Employee and his dependents acquire acquires replacement coverage or [iib] the second anniversary of maximum coverage period prescribed by COBRA. These amounts will be reimbursed on the Employee's Date of Termination (or, in date the case in which employment required premium is Terminated within six (6) months prior to the Change in Control, the second anniversary of the Change in Control). In the event the Employee's or his dependents' participation in the Company's plans is not permitted, then the Company will provide, through insurance or otherwise, at no after-tax cost to the Employee or his dependents, the benefits to which the Employee or his dependents would be entitled under such plans (such benefits, collectively, the "Medical Benefits"). Any Medical Benefits to be paid or provided under this Section 2.01[2][b] after completion of the time period described in Treasury Regulation §1.409A-1(b)(9)(v)(B) shall be subject to the following: [A] the amount of expenses eligible for reimbursement, or benefits provided, during any taxable year of the Employee may not affect the expenses eligible for reimbursement, or benefits to be provided, to the Employee in any other taxable yeardue; [B3] reimbursement of any eligible expense must be made on or before the last day of the Employee's taxable year following the taxable year in which the expense is incurred; and [C] the right to reimbursement or benefits is not subject to liquidation or exchange for another benefit. In addition, any tax gross-up payment due to the Employee under this subsection shall be made by the end of the Employee's taxable year next following the Employee's taxable year in which the Employee remits the related taxes. [ca] Pay the Employee a lump sum amount equal to the amount described difference between [i] the lump sum present value of all amounts that the Employee would have accrued or been credited with under each tax- qualified and nonqualified deferred compensation arrangement in this subsection. This payment will be made no more than sixty which the Employee actively accrues a benefit at any time between the date of the Change in Control (60"Deferred Compensation Plans") days after and the Employee’s Date of Termination (orother than an accretion based solely on the passage of time), in the case in which employment is Terminated within six (6) months prior to the Change in Control, within sixty (60) days after the Change in Control). The amount payable under this subsection will be the sum of: [i] two hundred (200) percent of the Employee’s base salary in effect at the Employee’s Date of Termination (or, if greater, the Employee's base salary in effect immediately prior to any event described calculated as provided in Section 1.09[4][a]); plus [ii5.01[3][b] two hundred (200) percent of the average annual bonus earned by the Employee during the five (5) fiscal years of the Company immediately preceding as if the Employee's Date of Termination; plus Termination had been 24 months after the Employee's actual Date of Termination ("Calculation Period") minus [iiiii] a pro-rated amount the lump sum present value of all amounts actually accrued and credited under the annual bonus (if any) which the Employee is eligible to receive with respect to the fiscal year in which Deferred Compensation Plans as of the Date of Termination occurs Termination. [b] For purposes of this computation and comparison: [i] The amount determined under Section 5.01[3][a] will be calculated based on separately for each Deferred Compensation Plan; [ii] If a Deferred Compensation Plan is terminated, frozen or amended to diminish benefit accruals or the rate of benefit accruals (collectively and separately, these actions are referred to as "Diminished") before the end of the Calculation Period, [A] the Company's and/or the Employee's achievement (as applicable) calculation of the performance goals applicable to the Employee's bonus for such fiscal year assuming that such fiscal year ended amount described in Section 5.01[3][a][i] will be made on the last day of assumption that the month immediately preceding the Date of Termination (with the applicable performance goals adjusted on a pro-rata basis to account for the partial fiscal year) Diminished Deferred Compensation Plan had not been Diminished and [B] the number of full calendar months that have elapsed in the fiscal year in which the Date of Termination occurs. Such amount shall be calculated by the Compensation Committee calculation of the Board in good faith and, subject to Section 4.01, shall be final and binding on the parties. [d] Provide any other benefits (including change in control benefits) to which the Employee is entitled under any other plan, program or agreement with the Company or any of its affiliates. Such benefits shall be provided in accordance with the terms of the applicable plan, program or agreement. [e] If appropriate, pay the additional amount described in Section 2.02.5.01[3][a][ii] will be based on the amount actually earned or accrued under the Diminished Deferred Compensation Plan as of the date of the Deferred Compensation Plan is Diminished and [I] will not be adjusted for the portion of any benefit accretion attributable solely to the passage of time and [II] will not be adjusted by the amount of any hypothetical benefit that might have been earned or accrued if the Diminished Deferred Compensation Plan had not been Diminished;

Calculation of Change in Control Payments. If a Change in Control occurs and, either [1] during the Effective Period or within six (6) months prior to the a Change in Control, the Company provides the Employee with a Notice of Termination stating that it is Terminating the Employee’s employment without Cause, or [2] during the Effective Period, the Employee provides the Company with a Notice of Termination stating that the Employee is Terminating his employment for Good Reason, then the Company will: [a] Continue to pay the Employee’s compensation and other benefits through the Date of Termination and also will pay the Employee the value of any unused vacation days determined under the Company’s personnel policy. The amounts attributable to unused vacation will be paid no later than thirty (30) 30 days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within thirty (30) days after the Change in Control). [b] Continue coverage Reimburse the Employee for the Employee and his dependents, at no cost to either the Employee or his dependents, of continued participation in all programs subject to the benefit provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“"COBRA”") for the period beginning on the Employee’s Date of Termination and ending on the earlier of [i] the date the Employee acquires replacement coverage or [ii] the maximum coverage period prescribed by COBRA. These amounts will be reimbursed on the date the required premium is due (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, any premiums due between the date of the Change in Control) and ending on the earlier of [i] the date the Employee and his dependents acquire replacement coverage or [ii] the second anniversary of the Employee's Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to and the Change in Control, unless otherwise paid by the second anniversary Company, will be reimbursed to the Employee in a single lump sum within five (5) days of the Change in Control). In the event the Employee's or his dependents' participation in the Company's plans is not permitted, then the Company will provide, through insurance or otherwise, at no after-tax cost to the Employee or his dependents, the benefits to which the Employee or his dependents would be entitled under such plans (such benefits, collectively, the "Medical Benefits"). Any Medical Benefits to be paid or provided under this Section 2.01[2][b] after completion of the time period described in Treasury Regulation §1.409A-1(b)(9)(v)(B) shall be subject to the following: [A] the amount of expenses eligible for reimbursement, or benefits provided, during any taxable year of the Employee may not affect the expenses eligible for reimbursement, or benefits to be provided, to the Employee in any other taxable year; [B] reimbursement of any eligible expense must be made on or before the last day of the Employee's taxable year following the taxable year in which the expense is incurred; and [C] the right to reimbursement or benefits is not subject to liquidation or exchange for another benefit. In addition, any tax gross-up payment due to the Employee under this subsection shall be made by the end of the Employee's taxable year next following the Employee's taxable year in which the Employee remits the related taxes. [c] Pay the Employee a lump sum equal to the amount described in this subsection. This payment will be made no more than sixty (60) 60 days after the Employee’s Date of Termination (or, in the case in which employment is Terminated within six (6) months prior to the Change in Control, within sixty (60) days after the Change in Control). The amount payable under this subsection will be the sum of: [i] two hundred (200) 200 percent of the average of the Employee’s base salary in effect at during the three (3) calendar years immediately preceding the Employee’s Date of Termination (or, if greater, the Employee's base salary in effect immediately prior to any event described in Section 1.09[4][a])Termination; plus [ii] two hundred (200) 200 percent of the average annual annualized cash bonus earned by the Employee during the five three (53) fiscal years of the Company immediately preceding the Employee's ’s Date of Termination; plus [iii] a pro-rated amount of the annual bonus (if any) which the Employee is eligible to receive with respect to the fiscal year in which the Date of Termination occurs calculated based on [A] the Company's and/or the Employee's achievement (as applicable) of the performance goals applicable to the Employee's bonus for such fiscal year assuming that such fiscal year ended on the last day of the month immediately preceding the Date of Termination (with the applicable performance goals adjusted on a pro-rata basis to account for the partial fiscal year) and [B] the number of full calendar months that have elapsed in the fiscal year in which the Date of Termination occurs. Such amount shall be calculated by the Compensation Committee of the Board in good faith and, subject to Section 4.01, shall be final and binding on the parties. [d] Provide any a ny other benefits (including change in control benefits) to which the Employee is entitled under any other plan, program or agreement with the Company or any of its affiliates. Such benefits shall be provided in accordance with the terms of the applicable plan, program or agreementCompany. [e] If appropriate, pay the additional amount described in Section 2.02.