Common use of Consequences of a Change in Control Clause in Contracts

Consequences of a Change in Control. Upon a Change in Control, all amounts, entitlements or benefits in which the Executive is not yet vested shall become fully vested including, without limitation, all outstanding options which shall remain exercisable through the end of their regularly scheduled term. In the event that any payment or benefit made or provided to or for the benefit of the Executive in connection with this Agreement, the Executive's employment with the Company, or the termination thereof (a "Payment") is determined to be subject to any excise tax ("Excise Tax") imposed by Section 4999 of the Code (or any successor to such Section), the Company shall pay to the Executive, prior to the time any Excise Tax is payable with respect to such Payment (through withholding or otherwise), an additional amount which, after the imposition of all income, employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (i) the Excise Tax on such Payment plus (ii) any penalty and interest assessments associated with such Excise Tax. The determination of whether any Payment is subject to an Excise Tax and, if so, the amount to be paid by the Company to the Executive and the time of payment shall be made by an independent auditor (the "Auditor") selected jointly by the Parties and paid by the Company. Unless the Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its Affiliates. If the Parties cannot agree on the firm to serve as the Auditor, then the Parties shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Consequences of a Change in Control. (i) Upon or after a Change in Control (as defined in the LTIP or any successor plan), the Severance Policy as in effect immediately before such Change in Control shall remain in effect and shall be applicable to the Executive. Equity awards granted under the LTIP shall be subject to the provisions contained therein regarding a Change in Control. (ii) If, following a Change in Control, the aggregate of all amounts, entitlements payments or benefits in which the Executive is not yet vested shall become fully vested including, without limitation, all outstanding options which shall remain exercisable through the end of their regularly scheduled term. In the event that any payment or benefit made or provided to or for the benefit Executive under Section 12(f)(i) and under all other plans, programs and agreements of the Executive in connection with this Agreement, Company (the Executive's employment with the Company, or the termination thereof (a "Aggregate Payment") is determined to be subject to any excise tax ("Excise Tax"constitute a Parachute Payment within the meaning of Section 280G(b)(2) imposed by Section 4999 of the Code (or any successor to such Section)Code, the Company shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Code ("Excise Tax Tax") is payable with respect to such Payment (through withholding or otherwise)Aggregate Payment, an additional amount which(the "Gross-Up Payment") that, after the imposition of all income, employment, excise and other taxes, penalties and interest taxes thereon, is equal to the sum of (i) the Excise Tax on such Payment plus (ii) any penalty and interest assessments associated with such Excise Taxthe Aggregate Payment. The determination of whether any the Aggregate Payment is subject to an Excise Tax constitutes a Parachute Payment and, if so, the amount to be paid by the Company to the Executive and the time of payment pursuant to this Section 12(f)(ii) shall be made by an independent auditor (the "Auditor") selected jointly by the Parties and paid by the CompanyParties. Unless the Executive agrees otherwise in writing, the The Auditor shall be a nationally recognized United States public accounting firm that which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its AffiliatesAffiliate thereof. If the Parties Executive and the Company cannot agree on the firm to serve as the Auditor, then the Parties Executive and the Company shall each select designate one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. All fees and expenses of the Auditor shall be borne solely by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within five calendar days of the receipt of the Auditor's determination. Any determination by the Auditor shall be binding upon the Company and the Executive, except as described in the next paragraph.

Consequences of a Change in Control. Upon (i) If, during the Effective Period following a Change in Control, all amountsthe Executive's employment is terminated by the Company without Cause, entitlements other than due to Disability or benefits in which death, or there is a Constructive Termination without Cause, the Executive is not yet vested shall become fully vested includingreceive the benefits provided in Section 11(d) above, without limitation, all outstanding options which shall remain exercisable through the end of their regularly scheduled term. as well as in Section 11(g)(ii) below. (ii) In the event that any payment amount or benefit made (collectively, the "Covered Payments") paid or provided distributed to the Executive by the Company or for the benefit any Affiliate incurs an excise tax under Section 4999 of the Executive in connection with this AgreementInternal Revenue Code of 1986, as amended (the Executive's employment with the Company, or the termination thereof (a "PaymentCode") is determined to or any similar tax that may hereafter be subject to any excise tax imposed ("Excise Tax") imposed by Section 4999 of the Code (or any successor to such Section), the Company shall pay to the Executive, prior to Executive at the time any Excise specified below, the Tax Reimbursement Payment. The Tax Reimbursement Payment is payable with respect to such Payment (through withholding or otherwise), defined as an additional amount which, after the imposition of all income, employment, employment and excise and other taxes, penalties and interest taxes thereon, is equal to the sum of (i) the Excise Tax on such Payment plus (ii) any penalty and interest assessments associated with such Excise Taxthe Covered Payments. The determination of whether any Payment is Covered Payments are subject to an Excise Tax and, if so, the amount of the Tax Reimbursement Payment to be paid by the Company to the Executive and the time of payment shall be made by an independent auditor (the "Auditor") jointly selected jointly by the Parties Company and the Executive and paid by the Company. Unless the Executive agrees otherwise in writing, the The Auditor shall be a nationally recognized United States public accounting firm that which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its AffiliatesCompany. If the Parties Executive and the Company cannot agree on the firm to serve as the Auditor, then the Parties Executive and the Company shall each select one an accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. The portion of the Tax Reimbursement Payment attributable to a Covered Payment shall be paid to the Executive by the Company prior to the date that the corresponding Excise Tax payment is due to be paid by the Executive (through withholding or otherwise).