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

Change in Control of the Parent Company. If the Associate’s employment is terminated by the Associate for Good Reason or by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be), other than for Cause, in each case within six (6) months prior to or twenty-four (24) months following a Change in Control of the Parent Company, then (i) the Company shall pay to the Associate a lump sum cash payment equal to twenty-four (24) months of the Associate’s Base Salary in effect immediately prior to the Double-Trigger Event Date, plus the pro rata portion of the Bonus earned, if any, as determined by the Compensation Committee, through the Double-Trigger Event Date; (ii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements between the Parent Company and the Associate with respect to such stock options; and (iii) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements between the Parent Company and the Associate with respect to such restricted stock awards (collectively, (i), (ii) and (iii) are referred to as the “Change in Control Payments”). If the termination of the Associate’s employment, as contemplated by this Section 2, occurs prior to the Change in Control, then the Associate shall be treated for purposes of this Section 2 as being employed on the date the Change in Control becomes effective and the Associate’s Base Salary in effect immediately prior to such termination shall be deemed in effect, for purposes of this Section 2, immediately prior to the Change in Control.

Change in Control of the Parent Company. If (a) Notwithstanding any other provision contained herein, if the Associate’s employment is terminated by the Associate for Good Reason (as defined in Section 13(c) herein) or by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be), other than for CauseCause (including, without limitation, written notice by the Company of its intent to terminate the Agreement upon expiration of the Employment Term pursuant to Section 3 hereof), in each case within six (6) months prior to or twenty-four (24) months following a Change in Control (as defined in Section 13(b) herein) of the Parent Company, then (i) the Company shall pay to the Associate within sixty (60) days after the Double-Trigger Event Date (as defined below in this Section 13(a)) a lump sum cash payment equal to twenty-four twelve (2412) months of the Associate’s Base Salary in effect immediately prior to the Double-Trigger Event Date, plus the pro rata portion of the Annual Bonus earned, if any, as determined by the Compensation Committee, through the Double-Trigger Event Date; (ii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements between the Parent Company and the Associate with respect to such stock options; and (iii) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements between the Parent Company and the Associate with respect to such restricted stock awards (collectively, (i), (ii) and (iii) are referred to as the “Change in Control Payments”). If the termination of the Associate’s employment, as contemplated by this Section 213, occurs prior to the Change in Control, then the Associate shall be treated for purposes of this Section 2 13 as being employed on the date the Change in Control becomes effective and the Associate’s Base Salary in effect immediately prior to such termination shall be deemed in effect, for purposes of this Section 213, immediately prior to the Change in Control. For purposes of this Section 13, the later of (i) the effective date of the Change in Control and (ii) the date Associate’s employment is terminated as contemplated in this Section 13(a) shall be referred to as the “Double-Trigger Event Date”. Notwithstanding the foregoing, the Associate shall not receive any Change in Control Payments described in this Section 13 unless the Associate has executed a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Company (the “Release”) and the period during which such Release may be revoked has expired, without the Associate having revoked the Release, on or before the 60th day following the Double-Trigger Event Date. None of the Change in Control Payments shall be paid until the Release has been signed and becomes effective, and any such payments that would otherwise be payable during such sixty-day period prior to the date the Release becomes effective shall be accumulated and paid to the Associate on the first payroll date following the date the Release becomes effective, without interest; provided, however, that if such sixty-day period begins in one calendar year and ends in a second calendar year, the Change in Control Payments shall be accumulated, without interest, and paid to the Associate on the first payroll date during the second calendar year following the date the Release becomes effective, as described above. (b) For purposes of this Section 13, “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 Section 409A of the Internal Revenue Code of 1986, as amended (including any Treasury regulations thereunder, the “Code”)) (a “Person”) of ownership of stock of the Parent Company that, together with stock held by such Person, constitutes more than fifty percent (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 fifty percent (50%) of the total fair market value or 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 any 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 thirty-five percent (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 shall be deemed to have occurred in any transaction in which either the Parent Company or the other entity 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 own more than fifty percent (50%) of the total fair market value or total voting power of the stock of 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 any Person, during the 12-month period ending on the date of the most recent acquisition by such Person, of assets of the Parent Company that have a total gross fair market value equal to or more than forty percent (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 Section 409A of the Code. The definition of Change in Control in this Subsection 13(b), and all other terms and provisions of this Agreement, shall be interpreted at all times in such a manner as to comply with Section 409A of the Code, meaning that no additional income tax is imposed on the Associate pursuant to Section 409A(1)(a) of the Code. (c) For purposes of this Section 13, “Good Reason” shall mean the Associate’s resignation from the Company within thirty (30) days following the occurrence of any of the following events with respect to the Associate:

Change in Control of the Parent Company. If (a) Notwithstanding any other provision contained herein, if the Associate’s employment is terminated by the Associate for Good Reason (as defined in Section 12(c) herein) or by the Company or the Parent Company (or the surviving or acquiring entity, as the case may be), other than for CauseCause (including, without limitation, written notice by the Company of its intent to terminate the Agreement upon expiration of the Employment Term pursuant to Section 3 hereof), in each case within six (6) months prior to or twenty-four (24) months following a Change in Control (as defined in Section 12(b) herein) of the Parent Company, then (i) the Company shall pay to the Associate a lump sum cash payment equal to twenty-four (24) months of the Associate’s Base Salary in effect immediately prior to the Double-Trigger Event DateDate (as defined below in this Section 12(a)), plus the pro rata portion of the Bonus earned, if any, as determined by the Compensation Committee, through the date of Double-Trigger Event Date; (ii) all outstanding and unvested stock options previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Option Plan (or successor plan) or the stock option agreements between the Parent Company and the Associate with respect to such stock options; and (iii) all outstanding and unvested shares of restricted stock (if any) previously granted to the Associate by the Parent Company shall immediately vest in full, without regard to the achievement of any applicable performance conditions, unless otherwise prohibited by the Incentive Plan (or successor plan) or the restricted stock agreements between the Parent Company and the Associate with respect to such restricted stock awards (collectively, (i), (ii) and (iii) are referred to as the “Change in Control Payments”). If the termination of the Associate’s employment, as contemplated by this Section 212, occurs prior to the Change in Control, then the Associate shall be treated for purposes of this Section 2 12 as being employed on the date the Change in Control becomes effective and the Associate’s Base Salary in effect immediately prior to such termination shall be deemed in effect, for purposes of this Section 212, immediately prior to the Change in Control. For purposes of this Section 12, the later of (i) the effective date of the Change in Control and (ii) the date Associate’s employment is terminated as contemplated in this Section 12(a) shall be referred to as the “Double-Trigger Event Date”. Notwithstanding the foregoing, the Associate shall not be entitled to receive any Change in Control Payments described in this Section 12 unless the Associate has executed a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Company (the “Release”) and the period during which such Release may be revoked has expired, without the Associate having revoked the Release, on or before the 60th day following the Double-Trigger Event Date. None of the Change in Control Payments shall be paid until the Release has been signed and become effective, and any such payments, which would otherwise be payable during such sixty-day period prior to the date the Release becomes effective, shall be accumulated and paid to the Associate on the first payroll date following the date the Release becomes effective, without interest; provided, however, that if such sixty-day period begins in one calendar year and ends in a second calendar year, the Change in Control Payments shall be accumulated, without interest, and paid to the Associate on the first payroll date during the second calendar year following the date the Release becomes effective, as described above. (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 Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) (a “Person”) of ownership of stock of the Parent Company that, together with stock held by such Person, constitutes more than fifty percent (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 fifty percent (50%) of the total fair market value or 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 any 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 thirty-five percent (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 any 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 forty percent (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) For purposes of this Section 12, “Good Reason” shall mean the Associate’s resignation from the Company within thirty (30) days following the occurrence of any of the following events with respect to the Associate: