Common use of Change in Control of the Parent Company Clause in Contracts

Change in Control of the Parent Company. (a) In the event of a change in control of the Parent Company while the Associate is still employed under this Agreement, on the date the change in control becomes effective, (i) the Company shall pay to the Associate a lump sum cash payment equal to 2.99 times the "base amount" with respect to the Associate’s compensation, as such term is defined in Section 280G of the Internal Revenue Code of 1986, as amended, and regulations and guidance issued thereunder (the "Code"); and (ii) all unvested Restricted Stock and stock options previously granted by the Parent Company to the Associate shall vest in full, without regard to the achievement of any applicable performance goals (collectively, (i) and (ii) are referred to as the "Change in Control Payments"). If, prior to the change in control, the Company terminates the Employment Term without Cause in connection with the change in control, then the Associate shall be treated for purposes of this Section 12 as being employed on the date the change in control becomes effective. (b) For purposes of this Section 12, “change in control” of the Parent Company shall mean: (i) Change in Ownership. The acquisition by an individual, entity or group (within the meaning of Code Section 409A) (a "Person") of ownership of stock of the Parent Company that, together with stock held by such Person, constitutes more than 50% of the total fair market value or total voting power of the stock of the Parent Company. However, if any Person is considered to own more than 50% of the total fair market value of total voting power of the stock of the Parent Company, the acquisition of additional stock by the same Person is not considered to cause a change in ownership of the Parent Company (or to cause a change in the effective control of the Parent Company). An increase in the percentage of stock owned by any one Person as a result of a transaction in which the Parent Company acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this paragraph. This paragraph applies only when there is a transfer of stock of the Parent Company (or issuance of stock of the Parent Company) and stock in the Parent Company remains outstanding after the transaction; or (ii) Change in Effective Control. (A) the acquisition by an individual, entity or group (within the meaning of Code Section 409A) (a "Person") during the 12-month period ending on the date of the most recent acquisition by such Person, of ownership of stock of the Parent Company possessing 35% or more of the total voting power of the stock of the Parent Company; or (B) the replacement of a majority of members of the Parent Company's Board of Directors during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Parent Company's Board of Directors prior to the date of the appointment or election. A change in effective control also may occur in any transaction in which either of the two corporations involved in the transaction has a "Change in Ownership" under paragraph (i) or "Change in Ownership of a Substantial Portion of the Company's Assets" under paragraph (iii). If any one Person is considered to effectively control the Parent Company, the acquisition of additional control of the Parent Company by the same Person is not considered to cause a change in the effective control of the Parent Company (or to cause a "Change in Ownership" of the Parent Company within the meaning of paragraph (i) above); or (iii) Change in Ownership of a Substantial Portion of Assets. The acquisition by an individual, entity or group (within the meaning of Code Section 409A) (a "Person") during the 12-month period ending on the date of the most recent acquisition by such Person, of assets from the Parent Company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Parent Company immediately prior to such acquisition(s). For this purpose, gross fair market value means the value of the assets of the Parent Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. No change in control shall be deemed to have occurred in the event of a transfer to a related person or as described in Code Section 409A. The definition of change in control in this Subsection 12(b), and all other terms and provisions of this Agreement, shall be interpreted at all times in such a manner as to comply with Code Section 409A, meaning that no additional income tax is imposed on the Associate pursuant to Code Section 409A(1)(a). (c) The Change in Control Payments shall be in addition to any other rights and benefits for which the Associate is eligible, either by way of contract or with respect to rights and benefits generally available to other executive officers or Associates of the Company. (d) If it is determined that any payment, benefit or distribution of any type that is made by the Company, the Parent Company, any of their affiliates, or any person, in connection with a change in control or a termination of the Associate’s employment thereafter, to or for the benefit of the Associate, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to excise taxes imposed by Code Section 4999, or any interest or penalties with respect to such excise tax (such excise tax and any such interest or penalties are collectively referred to as the “Excise Tax”), then the Associate shall be entitled to receive a one-time additional payment (a “Gross-Up Payment”) in an amount reasonably determined by the Accounting Firm (as defined below) to be equal to such Excise Tax. Payments under this Section are payable to the Associate even if the Associate is not eligible for termination benefits under this Agreement, and are subject to the following rules:

Change in Control of the Parent Company. (a) In the event of a change in control of the Parent Company while the Associate is still employed under this Agreement, on the date the change in control becomes effective, (i) the Company shall pay to the Associate a lump sum cash payment equal to 2.99 times the "base amount" with respect to the Associate’s compensation, as such term is defined in Section 280G of the Internal Revenue Code of 1986, as amended, and regulations and guidance issued thereunder (the "Code"); and (ii) all unvested Restricted Stock and stock options previously granted by the Parent Company to the Associate shall vest in full, without regard to the achievement of any applicable performance goals (collectively, (i) and (ii) are referred to as the "Change in Control Payments"). If, prior to the change in control, the Company terminates the Employment Term without Cause in connection with the change in control, then the Associate shall be treated for purposes of this Section 12 14 as being employed on the date the change in control becomes effective. (b) For purposes of this Section 1214, “change in control” of the Parent Company shall mean: (i) Change in Ownership. The acquisition by an individual, entity or group (within the meaning of Code Section 409A) (a "Person") of ownership of stock of the Parent Company that, together with stock held by such Person, constitutes more than 50% of the total fair market value or total voting power of the stock of the Parent Company. However, if any Person is considered to own more than 50% of the total fair market value of total voting power of the stock of the Parent Company, the acquisition of additional stock by the same Person is not considered to cause a change in ownership of the Parent Company (or to cause a change in the effective control of the Parent Company). An increase in the percentage of stock owned by any one Person as a result of a transaction in which the Parent Company acquires its stock in exchange for property will be treated as an acquisition of stock for purposes of this paragraph. This paragraph applies only when there is a transfer of stock of the Parent Company (or issuance of stock of the Parent Company) and stock in the Parent Company remains outstanding after the transaction; or (ii) Change in Effective Control. (A) the acquisition by an individual, entity or group (within the meaning of Code Section 409A) (a "Person") during the 12-month period ending on the date of the most recent acquisition by such Person, of ownership of stock of the Parent Company possessing 35% or more of the total voting power of the stock of the Parent Company; or (B) the replacement of a majority of members of the Parent Company's Board of Directors during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Parent Company's Board of Directors prior to the date of the appointment or election. A change in effective control also may occur in any transaction in which either of the two corporations involved in the transaction has a "Change in Ownership" under paragraph (i) or "Change in Ownership of a Substantial Portion of the Company's Assets" under paragraph (iii). If any one Person is considered to effectively control the Parent Company, the acquisition of additional control of the Parent Company by the same Person is not considered to cause a change in the effective control of the Parent Company (or to cause a "Change in Ownership" of the Parent Company within the meaning of paragraph (i) above); or (iii) Change in Ownership of a Substantial Portion of Assets. The acquisition by an individual, entity or group (within the meaning of Code Section 409A) (a "Person") during the 12-month period ending on the date of the most recent acquisition by such Person, of assets from the Parent Company that have a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the assets of the Parent Company immediately prior to such acquisition(s). For this purpose, gross fair market value means the value of the assets of the Parent Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. No change in control shall be deemed to have occurred in the event of a transfer to a related person or as described in Code Section 409A. The definition of change in control in this Subsection 12(b14(b), and all other terms and provisions of this Agreement, shall be interpreted at all times in such a manner as to comply with Code Section 409A, meaning that no additional income tax is imposed on the Associate pursuant to Code Section 409A(1)(a). (c) The Change in Control Payments shall be in addition to any other rights and benefits for which the Associate is eligible, either by way of contract or with respect to rights and benefits generally available to other executive officers or Associates of the Company. (d) If it is determined that any payment, benefit or distribution of any type that is made by the Company, the Parent Company, any of their affiliates, or any person, in connection with a change in control or a termination of the Associate’s employment thereafter, to or for the benefit of the Associate, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), would be subject to excise taxes imposed by Code Section 4999, or any interest or penalties with respect to such excise tax (such excise tax and any such interest or penalties are collectively referred to as the “Excise Tax”), then the Associate shall be entitled to receive a one-time additional payment (a “Gross-Up Payment”) in an amount reasonably determined by the Accounting Firm (as defined below) to be equal to such Excise Tax. Payments under this Section are payable to the Associate even if the Associate is not eligible for termination benefits under this Agreement, and are subject to the following rules: