Common use of Change in Control Has Occurred Clause in Contracts

Change in Control Has Occurred. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control all unvested restricted shares of Company stock and stock options held by Employee that are subject to performance-based vesting provisions shall hereby be amended to eliminate such performance-based vesting provisions and substitute time-based vesting provisions on the basis that such unvested shares and/or options shall vest ratably over the period commencing on the date of the Change in Control and ending on the last day of the measuring period to be used for determining whether the performance criteria would have been satisfied. If Employee’s termination pursuant to this Section 3.4 occurs within twenty-four (24) months following a Change in Control or if Employee is terminated pursuant to this Section 3.4 and a Change in Control occurs within ninety (90) days following Employee’s termination: A. Each month for a period of twelve (12) months following the effective date of Employee’s termination, the Company shall continue to pay Employee: (i) Employee’s base salary at the rate in effect just prior to the time a Notice of Termination is delivered plus (ii) one-twelfth of 100% of Employee’s annual target bonus amount (or other variable compensation program) for the year in which Notice of termination is delivered. Payments shall be made according to the Company’s normal payroll practices; provided, however, that the payments for the first six months following Employee’s termination in excess of the lesser of (i) two times the Employee’s base salary, and (ii) $490,000 (or such greater amount as may then be permitted under Treasury Regulation 409A-1(b)(9)(iii)(A) or any successor thereto), shall be deferred, and shall not be paid, until the first day of the seventh month following Employee’s termination; B. Company shall make available to Employee, at the Company’s expense, outplacement services provided that (i) the outplacement program and the provider of which shall be approved by Company, (ii) the outplacement services are performed within 12 months following the effective date of Employee’s termination, and (iii) the total cost of such Company-paid outplacement services shall not exceed $4,000; C. If Employee elects to continue his Company-provided group health benefits at the level in effect as of the date of termination under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall pay the premiums for Employee’s COBRA continuation coverage (for Employee and Employee’s dependents, if applicable) for a period of up to eighteen (18) months; and D. All outstanding options to purchase stock of the Company (or any successor) held by Employee that are subject to time-based vesting and all grants of restricted Company stock held by Employee that are subject to time based vesting shall become fully vested as of the effective date of Employee’s termination. In the event that there is a Change in Control within 90 days after Employee’s employment was terminated by the Company pursuant to this Section 3.4 and stock options or stock grants were terminated or forfeited to the Company upon Employee’s employment termination pursuant to their terms (because the Change in Control had not occurred at the time of employment termination), the Company shall pay Employee the value of the terminated or forfeited options or shares based upon the per-share proceeds payable to the shareholders of the Company upon such Change in Control or, if the Change in Control is of a type that does not result in proceeds or consideration being paid or payable to shareholders of the Company, the value of the terminated or forfeited options or shares shall equal the average closing price of the Company’s Common Stock for the prior sixty (60) trading days ending on the trading day prior to the effective date of the Change in Control.

Change in Control Has Occurred. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control all unvested restricted shares of Company stock and stock options held by Employee that are subject to performance-based vesting provisions shall hereby be amended to eliminate such performance-based vesting provisions and substitute time-based vesting provisions on the basis that such unvested shares and/or options shall vest ratably over the period commencing on the date of the Change in Control and ending on the last day of the measuring period to be used for determining whether the performance criteria would have been satisfied. If EmployeeExecutive’s termination pursuant to this Section 3.4 occurs within twenty-four (24) months following a Change in Control or if Employee Executive is terminated pursuant to this Section 3.4 and a Change in Control occurs within ninety (90) days following EmployeeExecutive’s termination: A. Each month for a period of twelve (12) months following the effective date of EmployeeExecutive’s termination, the Company shall continue to pay EmployeeExecutive: (i) EmployeeExecutive’s base salary Base Salary at the rate in effect just prior to the time a Notice of Termination is delivered plus (ii) one-twelfth of 100% of EmployeeExecutive’s targeted annual target bonus amount (or other variable compensation program) for the year in which Notice of termination is delivered. Payments shall be made according to the Company’s normal payroll practices; provided, however, that the payments for the first six months following Employee’s termination in excess of the lesser of (i) two times the Employee’s base salary, and (ii) $490,000 (or such greater amount as may then be permitted under Treasury Regulation 409A-1(b)(9)(iii)(A) or any successor thereto), shall be deferred, and shall not be paid, until the first day of the seventh month following Employee’s termination; B. Company shall make available to Employee, at the Company’s expense, outplacement services provided that (i) the outplacement program and the provider of which shall be approved by Company, (ii) the outplacement services are performed within 12 months following the effective date of Employee’s termination, and (iii) the total cost of such Company-paid outplacement services shall not exceed $4,000; C. If Employee Executive elects to continue his Company-provided group health benefits at the level in effect as of the date of termination under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall pay the premiums for EmployeeExecutive’s COBRA continuation coverage (for Employee Executive and EmployeeExecutive’s dependents, if applicable) for a period of up to eighteen (18) months; C. Company shall make available to Executive for a period of twelve (12) months after termination, outplacement services provided that (i) the outplacement program and the provider of which shall be selected by Company and (ii) the outplacement services are performed within such 12-month period; and D. All outstanding options to purchase stock of the Company (or any successor) held by Employee Executive that are subject to time-based vesting and all grants of restricted Company stock held by Employee Executive that are subject to time time-based vesting shall become fully vested as of the effective date of EmployeeExecutive’s termination. In the event that there is a Change in Control within 90 days after EmployeeExecutive’s employment was terminated by the Company pursuant to this Section 3.4 and stock options or stock grants were terminated or forfeited to the Company upon EmployeeExecutive’s employment termination pursuant to their terms (because the Change in Control had not occurred at the time of employment termination), the Company shall pay Employee Executive the value of the terminated or forfeited options or shares based upon the per-share proceeds payable to the shareholders of the Company upon such Change in Control or, if the Change in Control is of a type that does not result in proceeds or consideration being paid or payable to shareholders of the Company, the value of the terminated or forfeited options or shares shall equal the average closing price of the Company’s Common Stock for the prior sixty (60) trading days ending on the trading day prior to the effective date of the Change in Control.

Change in Control Has Occurred. Notwithstanding anything herein to the contrary, upon the occurrence of a Change in Control all unvested restricted shares of Company stock and stock options held by Employee that are subject to performance-based vesting provisions shall hereby be amended to eliminate such performance-based vesting provisions and substitute time-based vesting provisions on the basis that such unvested shares and/or options shall vest ratably over the period commencing on the date of the Change in Control and ending on the last day of the measuring period to be used for determining whether the performance criteria would have been satisfied. If EmployeeExecutive’s termination pursuant to this Section 3.4 occurs within twenty-four (24) months following a Change in Control or if Employee Executive is terminated pursuant to this Section 3.4 and a Change in Control occurs within ninety (90) days following EmployeeExecutive’s termination: A. Each month for a period of twelve (12) months following the effective date of EmployeeExecutive’s termination, the Company shall continue to pay EmployeeExecutive: (i) EmployeeExecutive’s base salary Base Salary at the rate in effect just prior to the time a Notice of Termination is delivered plus (ii) one-twelfth of 100% of EmployeeExecutive’s targeted annual target bonus amount (or other variable compensation program) for the year in which Notice of termination is delivered. Payments shall be made according to the Company’s normal payroll practices; provided, however, that the payments for the first six months following EmployeeExecutive’s termination in excess of the lesser of (i) two times the EmployeeExecutive’s base salaryBase Salary, and (ii) $490,000 (or such greater amount as may then be permitted under Treasury Regulation 409A-1(b)(9)(iii)(A) or any successor thereto), shall be deferred, and shall not be paid, until the first day of the seventh month following EmployeeExecutive’s termination; B. Company shall make available to Employee, at the Company’s expense, outplacement services provided that (i) the outplacement program and the provider of which shall be approved by Company, (ii) the outplacement services are performed within 12 months following the effective date of Employee’s termination, and (iii) the total cost of such Company-paid outplacement services shall not exceed $4,000; C. If Employee Executive elects to continue his Company-provided group health benefits at the level in effect as of the date of termination under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall pay the premiums for EmployeeExecutive’s COBRA continuation coverage (for Employee Executive and EmployeeExecutive’s dependents, if applicable) for a period of up to eighteen (18) months; C. Company shall make available to Executive for a period of twelve (12) months after termination, outplacement services provided that (i) the outplacement program and the provider of which shall be selected by Company and (ii) the outplacement services are performed within such 12-month period; and D. All outstanding options to purchase stock of the Company (or any successor) held by Employee Executive that are subject to time-based vesting and all grants of restricted Company stock held by Employee Executive that are subject to time time-based vesting shall become fully vested as of the effective date of EmployeeExecutive’s termination. In the event that there is a Change in Control within 90 days after EmployeeExecutive’s employment was terminated by the Company pursuant to this Section 3.4 and stock options or stock grants were terminated or forfeited to the Company upon EmployeeExecutive’s employment termination pursuant to their terms (because the Change in Control had not occurred at the time of employment termination), the Company shall pay Employee Executive the value of the terminated or forfeited options or shares based upon the per-share proceeds payable to the shareholders of the Company upon such Change in Control or, if the Change in Control is of a type that does not result in proceeds or consideration being paid or payable to shareholders of the Company, the value of the terminated or forfeited options or shares shall equal the average closing price of the Company’s Common Stock for the prior sixty (60) trading days ending on the trading day prior to the effective date of the Change in Control.