Common use of Change in Control of the Employer Clause in Contracts

Change in Control of the Employer. 11.1 In the event of a "change in control" of the Employer, as defined hereinafter, Executive shall be entitled at any time up to thirty (30) days prior to the date of closing of the transaction (the "Election Date") which will affect such change in control (the "Change-in-Control Date") and at his election, to give written notice to Employer of termination of this Agreement, and Executive shall be paid, in addition to all accrued but unpaid Base Salary (which is to be paid as earned) and Performance Bonuses (which are to be paid as provided in this Agreement), a lump sum cash payment in the amount stated in Paragraph J of Exhibit "A" (the "Change-in-Control Payment"). The Change-in-Control payment provided for in this Section 11.1 shall be unconditional and without setoff of any kind and paid in cash, not later than ten (10) days after the date of notice of termination by Executive under this Section 11.1 or on the Change-in-Control Date, whichever is later provided; however, that such Change-in-Control Payment shall in no event be paid later than ninety (90) days from the date of the notice of termination by Executive. Additionally, the Change-in-Control Payment shall be made to Executive as a condition precedent to the closing of the transaction which will effect the change in control, and prior to the Change-in-Control Date Employer shall notify representatives of the acquiring or successor entity, as the case may be, of Executive's rights and Employer's obligations under this Agreement, including without limitation this paragraph, and without effecting Employer's obligations to pay Executive hereunder, any such acquiring or successor entity shall become obligated to forthwith pay to Executive for such part of the Change-in-Control Payment as has not been paid by the Employer as of the Change-in-Control Date. 11.2 In addition to the foregoing and notwithstanding any provision to the contrary or otherwise in this Agreement, in the event of a change in control of Employer (as defined hereinafter), all options and other stock rights of the Executive, whether under this Agreement or otherwise (including, but not limited to the accrual of stock options not yet issued

Change in Control of the Employer. 11.1 In the event of a "change in control" of the Employer, as defined hereinafter, Executive shall be entitled at any time up to thirty (30) days prior to the date of closing of the transaction (the "Election Date") which will affect such change in control (the "Change-in-Control Date") and at his election, to give written notice to Employer of termination of this AgreementAgreement ("Change-in Control Termination Notice"), and following Change-in-Control Termination Notice, Executive shall be paid, paid in addition to all accrued but unpaid Base Salary (which is to be paid as earned) and Performance Bonuses (which are to be paid as provided in paragraph B of Exhibit "A" of this Agreement), ) a lump sum cash payment in the amount stated in Paragraph J of Exhibit "A" (the "Change-in-Control Payment"). The Change-in-Control payment payments provided for in this Section 11.1 shall be unconditional and without setoff of any kind and paid in cash, not later than ten (10) days after the date of notice of termination the Change-in-Control Termination Notice by Executive under this Section 11.1 or on the Change-inof-Control Date, whichever is later later; provided; , however, that such Change-in-Control Payment shall in no event be paid later than ninety (90) days from the date of the notice of termination Change-in-Control Notice by Executive. Additionally, the Change-in-Control Payment payment shall be made to Executive as a condition precedent to the closing of the transaction which will effect the change in control, and prior to the Change-in-Control Date Date, Employer shall notify representatives of the acquiring or successor entity, as the case may be, of Executive's rights and Employer's obligations under this Agreement, including without limitation this paragraph, and without effecting affecting Employer's obligations to pay Executive hereunder, any such acquiring or successor entity shall become obligated to forthwith pay to Executive for such part of the Change-in-Control Payment as has not been paid by the Employer as of the Change-in-Control Date. 11.2 In addition to the foregoing and notwithstanding any provision to the contrary or otherwise in this Agreement, in the event of a change in control of Employer (as defined hereinafter), all options and other stock rights of the Executive, whether under this Agreement or of otherwise (including, but not limited to the accrual of stock options not yet issued to Executive, but to which Executive is entitled), shall automatically and without further documentation immediately vest in Executive, and Executive shall have the immediate and unfettered right to take any and all actions as Executive shall deem appropriate with regard to said options and/or rights, including without limitation the immediate right to receive unissued, but accrued stock options, exercise stock options and/or transfer or sell stock. Employer shall take all actions necessary to immediately issue any stock options which have accrued, but have not yet been issued. 11.3 If Executive elects to terminate this Agreement pursuant to this Section 11, then Executive shall further be entitled, in lieu of the receipt of shares of Common Stock of the Employer issuable upon exercise of Executive's stock options, whether such options arose under this Agreement or otherwise, to receive from Employer an amount in cash or Common Stock of the Employer (or any combination thereof) as Executive shall in his sole discretion designate (hereinafter "like-kind-election") equal to the excess of the fair market value (hereinafter defined) as of the Change-in-control Date of each share of Common Stock over the exercise price(s) of each share represented by Executive's options, times the number of shares of Common Stock represented by such options. The "fair market value" of each share of the Common Stock shall be equal to the highest of (I) the value as determined by the Board of Directors of the Employer if there is no organized trading market for the shares at the time such determination is made, or (ii) the closing price per share as of the date of the like-kind election (or the average of the bid and asked prices if no closing price is available) on any nationally recognized securities exchange or association on which the Employer's shares may be quoted or listed, or (iii) the highest per share price actually paid for Common Stock in connection with any change in control of the Employer, or (iv) the fair market value of the shares of the Common Stock as determined by Sheshunoff or Xxxxx, Xxxxxxxx & Xxxxx or similarly qualified entity or (v) the price being paid for each share of Common Stock as part of the Change-in-Control. The payment provided for in this Section 11.2 shall be paid in full not later than ten (10) days after the date of the Change-in-Control Notice by Executive under this Section 11 or on the Change-of-Control Date, whichever is later. 11.4 For purposes of this Section 11, "change in control" of the Employer shall mean the first to occur of any one or more of the following: (i) any transaction whether by merger, consolidation asset sale, recapitalization, reorganization, combination, stock purchase, tender offer, reverse stock split, or otherwise, which results in the acquisition of, or beneficial ownership (as such term is defined under rules and regulations promulgated under the Securities Exchange Act of 1934, as amended) by, any person or entity or any group of persons or entities acting in concert, of 50% or more of the outstanding shares of Common Stock of the Employer; or (ii) the sale of all or substantially all of the assets of the Employer; or (iii) the liquidation of the Employer or a material amount of Employer's assets; or (iv) the takeover or control of all or substantially all of the operations of Employer through any of the means specified in 11.4 (I) above; or (v) the approval by the Board of Directors and the holders of a majority of the Common Shares then outstanding of any of the events or transactions listed in 11.4(i) - (iv) above.

Change in Control of the Employer. 11.1 12.1 In the event of a "change in control" of the Employer, as defined hereinafter, Executive shall be entitled at any time up to thirty (30) days prior to the date of closing of the transaction (the "Election Date") which will affect such change in control (the "Change-in-Control Date") and at his election, to give written notice to Employer of termination of this AgreementAgreement ("Change-in Control Termination Notice"), and following Change-in-Control Termination Notice, Executive shall be paid, paid in addition to all accrued but unpaid Base Salary (which is to be paid as earned) and Performance Bonuses (which are to be paid as provided in paragraph B of Exhibit "A" of this Agreement), ) a lump sum cash payment in the amount stated in Paragraph J of Exhibit "A" (the "Change-in-Control Payment"). The Change-in-Control payment payments provided for in this Section 11.1 shall be unconditional and without setoff of any kind and paid in cash, not later than ten (10) days after the date of notice of termination the Change-in-Control Termination Notice by Executive under this Section 11.1 or on the Change-inof-Control Date, whichever is later later; provided; , however, that such Change-in-Control Payment shall in no event be paid later than ninety (90) days from the date of the notice of termination Change-in-Control Notice by Executive. Additionally, the Change-in-Control Payment payment shall be made to Executive as a condition precedent to the closing of the transaction which will effect the change in control, and prior to the Change-in-Control Date Date, Employer shall notify representatives of the acquiring or successor entity, as the case may be, of Executive's rights and Employer's obligations under this Agreement, including without limitation this paragraph, and without effecting affecting Employer's obligations to pay Executive hereunder, any such acquiring or successor entity shall become obligated to forthwith pay to Executive for such part of the Change-in-Control Payment as has not been paid by the Employer as of the Change-in-Control Date. 11.2 12.2 In addition to the foregoing and notwithstanding any provision to the contrary or otherwise in this Agreement, in the event of a change in control of Employer (as defined hereinafter), all options and other stock rights of the Executive, whether under this Agreement or of otherwise (including, but not limited to the accrual of stock options not yet issued to Executive, but to which Executive is entitled), shall automatically and without further documentation immediately vest in Executive, and Executive shall have the immediate and unfettered right to take any and all actions as Executive shall deem appropriate with regard to said options and/or rights, including without limitation the immediate right to receive unissued, but accrued stock options, exercise stock options and/or transfer or sell stock. Employer shall take all actions necessary to immediately issue any stock options which have accrued, but have not yet been issued.

Change in Control of the Employer. 11.1 In the event of a "“change in control" ” of the Employer, as defined hereinafter, Executive shall be entitled at any time up to thirty (30) days prior to the date of closing of the transaction (the "Election “election Date"”) which will affect such change in control (the "“Change-inon-Control Date"”) and at his election, to give written notice to Employer of termination of this AgreementAgreement (“Change-in Control Termination Notice”), and following Change-in-control Termination Notice, Executive shall be paid, paid in addition to all accrued but unpaid Base Salary (which is to be paid as earned) and Performance Bonuses (which which, are to be paid as provided in paragraph B of Exhibit “A” of this Agreement), ) a lump sum cash payment in the amount stated in Paragraph J of Exhibit "“A" ” (the "“Change-in-Control Payment"”). The Change-in-Control payment payments provided for in this Section 11.1 shall be unconditional and without setoff set off of any kind and paid in cash, not later than ten (10) days after the date of notice of termination the Change-in-Control Termination Notice by Executive under this Section 11.1 or on the Change-inof-Control Date, whichever is later later; provided; , however, that such Change-in-Control Payment shall in no event be paid later than ninety (90) days from the date of the notice of termination Change-in-Control Notice by Executive. , Additionally, the Change-in-Control Payment shall be made to Executive as a condition precedent to the closing of the transaction which will effect the change in control, and the prior to the Change-in-Control Date Date, Employer shall notify representatives of the acquiring or successor entity, as the case may be, of Executive's ’s rights and Employer's obligations under this Agreement, including without limitation this paragraph, and without effecting Employer's ’s obligations to pay Executive hereunder, any such acquiring or successor entity shall become obligated to forthwith pay to Executive for such part of the Change-in-Control Payment as has not been paid by the Employer as of the Change-in-Control Date. 11.2 In addition to the foregoing and notwithstanding withstanding any provision to the contrary or otherwise in this Agreement, in the event of a change in control of Employer (as defined hereinafter), all options and other stock rights of the Executive, whether under this Agreement or otherwise (including, but not limited to the accrual of stock options not yet issued to Executive, but to which Executive is entitled), shall automatically and without further documentation immediately vest in Executive, and Executive shall have the immediate and unfettered right to take any and all actions as Executive shall deem appropriate with regard to said options and/or rights, including without limitation the immediate right to receive unissued, but accrued stock options, exercise stock options and/or transfer or sell stock. Employer shall take all actions necessary to immediately issue any stock options which have accrued, but have not yet been issued. 11.3 If Executive elects to terminate this Agreement pursuant to this Section 11, then Executive shall further be entitled, in lieu of the receipt of shares of Common Stock of the Employer issuable upon exercise of Executive’s stock options, whether such options arose under this Agreement or otherwise, to receive from Employer an amount in cash or Common Stock of the Employer (or any combination thereof) as Executive shall in his sole discretion designate (hereinafter “like-kind election”) equal to the excess of the fair market value (hereinafter defined) as of the Change-in-Control Date of each share of Common Stock over the exercise price(s) of each share represented by Executive’s options, times the number of shares of Common Stock represented by such options. The “fair market value” of each share of the Common Stock shall be equal to the highest of (i) the value as determined by the Board of Directors of the Employer if there is no organized trading market for the shares at the time such determination is made, or (ii) the closing price per share as of the date of the like-kind election (or the average of the bid and asked prices if no closing price is available) on any nationally recognized securities exchange or association on which the Employer’s shares may be quoted or listed, or (iii) the highest per share price actually paid for Common Stock in connection with any change in control of the Employer, or (iv) the fair market value of the shares of the Common Stock as determined by Sheshunoff or Kxxxx, Bxxxxxxx and Wxxxx or similarly qualified entity or (v) the price being paid for each share of Common Stock as part of the Change-in-Control. The payment provided for in this Section 11.2 shall be paid in full not later than ten (10) days after the date of the Change-in-Control Notice by Executive under this Section 11 or on the Change- of-Control Date, whichever is later. 11.4 For purposes of this Section 11, “change in control” of the employer shall mean the first to occur of any one or more of the following: (i) any transaction, whether by merger, consolidation, asset sale, recapitalization, reorganization, combination, stock purchase, tender offer, reverse stock split, or otherwise, which results in the acquisition of, or beneficial ownership (as such term is defined under rules and regulations promulgated under the Securities Exchange Act of 1934, as amended) by, any person or entity or any group of persons or entities acting in concert, of 50% or more of the outstanding shares of Common Stock or the Employer; or (ii) the sale of all or substantially all of the assets of the Employer; or (iii) the liquidation of the Employer or a material amount of Employer’s assets; or (iv) the takeover or control of all of substantially all of the operations of Employer through any of the means specified in 11.4 (I) above; or (v) the approval by the Board of Directors and the holders of a majority of the Common Shares then outstanding of any of the events or transactions listed in 11.4(I)—(iv) above.