Common use of Stock Based Compensation Plans Clause in Contracts

Stock Based Compensation Plans. (i) Upon a Change in Control (as defined for the limited purpose of this Section 4(f)(i) by substituting "15%" for "25%" in Sections 1(b)(i) and 1(b)(iii)(B)), whether or not the Executive's employment terminates, any issued and outstanding Equity Awards (hereinafter defined) granted prior to November 13, 2000, either (a) will immediately vest and become exercisable in accordance with the Company's 1996 Long Term Incentive Plan, Amended and Restated 1996 Long Term Incentive Plan, or any successor plans (collectively the "LTIP") (and for purposes hereof, any interpretation or rulings under the LTIP shall equally apply to this Agreement) or (b) at the Company's sole and absolute discretion, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the aggregate difference (if any, including a deemed distribution of $0) between the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock and the exercise price of the Stock Options (or Base Amount of Stock Appreciation Rights, or other awards involving an exercise price or spread amount) (such difference hereinafter referred to as the "Spread Amount"), multiplied by the number of such Stock Options (or Stock Appreciation Rights, or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer all such Stock Options (or Stock Appreciation Rights, or other awards involving an exercise price or spread amount) to the Company in exchange for such payment by the Company. Alternatively, if it would yield a greater payment, in lieu of paying the Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options or Stock Appreciation Rights (or other awards involving an exercise price or spread amount) based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black- Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard), or any other amount between the Spread Amount and fair value. (ii) Notwithstanding anything to the contrary in the LTIP or in any stock option agreement, upon a Change in Control (as defined hereunder), whether or not the Executive's employment terminates, any issued and outstanding Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Shares, Stock Equivalent Units, Deferred Stock, Stock Purchase Rights, Other Stock-Based Awards, Performance Awards, or any other equity-based compensation (collectively, "Equity Awards") granted on or after November 13, 2000, shall continue in effect or, if such continuation is not possible, shall be equitably converted to equivalent Equity Awards of any successor entity such that the relative value of the Equity Awards is the same following conversion as the value immediately prior to the conversion, or, if such continuation or conversion is not possible (but only if it is not possible), then all such Equity Awards shall either (a) become fully vested and exercisable in accordance with the LTIP or (b) at the Company's sole and absolute discretion, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock for each such Award (in the case of Restricted Stock, Performance Shares, Deferred Stock or similar Awards), plus the excess (if any, including a deemed distribution of $0) of the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock over the exercise price or base amount (such excess hereinafter referred to as the "Spread Amount"), multiplied by the number of such Awards (in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer all such Equity Awards to the Company in exchange for such payment by the Company. Alternatively, if it would yield a greater amount, in lieu of paying such Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Spread Amount and fair value. (iii) Notwithstanding anything to the contrary in the LTIP or in any stock option agreement, if any Equity Awards are not vested or cashed out in accordance with 4.(f)(ii) above, then, if the Executive is involuntarily terminated without Cause or voluntarily terminates for Good Reason and the Termination Date occurs within two (2) years after a Change in Control (as defined hereunder), then either (a) such Equity Awards shall become fully vested and, if subject to an exercise right, shall remain fully exercisable for at least three (3) months following such termination (or, if longer, pursuant to the terms of such Equity Awards), or (b) at the Company's sole and absolute discretion, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the fair market value of the Company's stock on the Termination Date (and not the Change in Control date) for each such award (in the case of Restricted Stock, Performance Shares, Deferred Stock or similar awards), plus the excess (if any, including a deemed distribution of $0) of the fair market value of the Company's stock on the Termination Date (and not the Change in Control date) over the exercise price or base amount (such excess hereinafter referred to as the "Termination Spread Amount"), multiplied by the number of such Awards (in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer such Equity Awards to the Company in exchange for such payment. Alternatively, if it would yield a greater amount, in lieu of paying such Termination Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Options, Stock Rights or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Termination Spread Amount and fair value. In addition, if the Executive is terminated without Cause within one hundred eighty (180) days prior to a Change in Control and any Equity Award previously granted to him is forfeited or cancelled within such one hundred eighty (180) day period, then upon the Change in Control, the Executive will be entitled to a cash payment as if such Equity Award had been cashed out (i.e., settled in cash) based on either the excess (if any, including a deemed distribution of $0) of the fair market value of the Company's stock at the Executive's termination of employment date (and not the Change in Control date) over the exercise price or base amount, if any, of the Equity Award, in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount (such excess hereinafter referred to as the "Termination Spread Amount") or, in the case of Restricted Stock, Performance Shares, Deferred Stock, or similar Awards, based on the fair market value of the Company's stock at the Executive's termination of employment date, in either case net of any required withholding. Alternatively, if it would yield a greater amount, in lieu of paying such Termination Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Termination Spread Amount and fair value.

Stock Based Compensation Plans. (i) Upon a Change in Control (as defined for the limited purpose of this Section 4(f)(i) by substituting "15%" for "25%" in Sections 1(b)(i) and 1(b)(iii)(B)), whether or not the Executive's employment terminates, any issued and outstanding Equity Awards (hereinafter defined) granted prior to November 13, 2000, either (a) will immediately vest and become exercisable in accordance with the Company's 1996 Long Term Incentive Plan, Amended and Restated 1996 Long Term Incentive Plan, or any successor plans (collectively the "LTIPLTIPs") (and for purposes hereof, any interpretation or rulings under the LTIP shall equally apply to this Agreement) or (b) at the Company's sole and absolute discretion, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the aggregate difference (if any, including a deemed distribution of $0) between the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock and the exercise price of the Stock Options (or Base Amount of Stock Appreciation Rights, or other awards involving an exercise price or spread amount) (such difference hereinafter referred to as the "Spread Amount"agreement), multiplied by the number of such Stock Options (or Stock Appreciation Rights, or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer all such Stock Options (or Stock Appreciation Rights, or other awards involving an exercise price or spread amount) to the Company in exchange for such payment by the Company. Alternatively, if it would yield a greater payment, in lieu of paying the Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options or Stock Appreciation Rights (or other awards involving an exercise price or spread amount) based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black- Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard), or any other amount between the Spread Amount and fair value. (ii) Notwithstanding anything to the contrary in the LTIP or in any stock option agreement, upon a Change in Control (as defined hereunder), whether or not the Executive's employment terminates, any issued and outstanding Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Shares, Stock Equivalent Units, Deferred Stock, Stock Purchase Rights, Other Stock-Based Awards, Performance Awards, or any other equity-based compensation (collectively, "Equity Awards") granted on or after November 13, 2000, shall continue in effect or, if such continuation is not possible, shall be equitably converted to equivalent Equity Awards of any successor entity such that the relative value of the Equity Awards is the same following conversion as the value immediately prior to the conversion, or, if such continuation or conversion is not possible (but only if it is not possible), then all such Equity Awards shall either (a) become fully vested and exercisable in accordance with the LTIP or (b) at the Company's sole and absolute discretion, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock for each such Award (in the case of Restricted Stock, Performance Shares, Deferred Stock or similar Awards), plus the excess (if any, including a deemed distribution of $0) of the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock over the exercise price or base amount (such excess hereinafter referred to as the "Spread Amount"), multiplied by the number of such Awards (in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer all such Equity Awards to the Company in exchange for such payment by the Company. Alternatively, if it would yield a greater amount, in lieu of paying such Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Spread Amount and fair valueLTIP. (iii) Notwithstanding anything to the contrary in the LTIP or in any stock option agreement, if any Equity Awards are not vested or cashed out in accordance with 4.(f)(ii(ii) above, then, then they shall become vested if the Executive is involuntarily terminated without Cause or voluntarily terminates for Good Reason and if the Termination Date occurs within two (2) years after a Change in Control (as defined hereunder), then either (a) such Equity Awards shall become fully vested and, if subject to an exercise right, shall remain fully exercisable for at least three (3) months following such termination (or, if longer, pursuant to the terms of such Equity Awards), . Such vesting shall also occur for any Equity Award forfeited or (b) at the Company's sole and absolute discretion, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the fair market value of the Company's stock on the Termination Date (and not the Change in Control date) for each such award (in the case of Restricted Stock, Performance Shares, Deferred Stock or similar awards), plus the excess (if any, including a deemed distribution of $0) of the fair market value of the Company's stock on the Termination Date (and not the Change in Control date) over the exercise price or base amount (such excess hereinafter referred to as the "Termination Spread Amount"), multiplied by the number of such Awards (in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer such Equity Awards to the Company in exchange for such payment. Alternatively, if it would yield a greater amount, in lieu of paying such Termination Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Options, Stock Rights or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Termination Spread Amount and fair value. In addition, if the Executive is terminated without Cause cancelled within one hundred eighty (180) days prior to a Change in Control and any Equity Award previously granted to him if the Executive is forfeited or cancelled involuntarily terminated without Cause within such one hundred eighty (180) day period, then upon the Change in Controlexcept that any such previously forfeited or cancelled Equity Awards shall not be reissued, the Executive will reinstated or replaced, but rather shall be entitled to a cash payment as if such Equity Award had been automatically cashed out (i.e., settled in cash) based on either the excess (if any, including a deemed distribution of $0) of the fair market value of the Company's stock at the Executive's termination of employment date (and not the Change in Control date) over the exercise price or base amountprice, if any, of the Equity Award, in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount (such excess hereinafter referred to as the "Termination Spread Amount") or, in the case of Restricted Stock, Performance Shares, Deferred Stock, or similar Awards, based on the fair market value of the Company's stock at the Executive's termination of employment date, in either case net of any required withholding. Alternatively, if it would yield a greater amount, in lieu of paying such Termination Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Termination Spread Amount and fair value.

Stock Based Compensation Plans. (i) Upon a Change in Control (as defined for the limited purpose of this Section 4(f)(i) by substituting "15%" for "25%" in Sections 1(b)(i) and 1(b)(iii)(B)), whether or not the Executive's employment terminates, any issued and outstanding Equity Awards (hereinafter defined) granted prior to November 13, 2000, either (a) will immediately vest and become exercisable in accordance with the Company's 1996 Long Term Incentive Plan, Amended and Restated 1996 Long Term Incentive Plan, or any successor plans (collectively the "LTIP") (and for purposes hereof, any interpretation or rulings under the LTIP shall equally apply to this Agreement) or (b) at the Company's sole and absolute discretion, but subject Section 4.(f)(iv) below, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the aggregate difference (if any, including a deemed distribution of $0) between the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock and the exercise price of the Stock Options (or Base Amount of Stock Appreciation Rights, or other awards involving an exercise price or spread amount) (such difference hereinafter referred to as the "Spread Amount"), multiplied by the number of such Stock Options (or Stock Appreciation Rights, or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer all such Stock Options (or Stock Appreciation Rights, or other awards involving an exercise price or spread amount) to the Company in exchange for such payment by the Company. Alternatively, if it would yield a greater payment, in lieu of paying the Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options or Stock Appreciation Rights (or other awards involving an exercise price or spread amount) based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black- Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard), or any other amount between the Spread Amount and fair value. (ii) Notwithstanding anything to the contrary in the LTIP or in any stock option agreement, upon a Change in Control (as defined hereunder), whether or not the Executive's employment terminates, any issued and outstanding Stock Options, Stock Appreciation Rights, Restricted Stock, Performance Shares, Stock Equivalent Units, Deferred Stock, Stock Purchase Rights, Other Stock-Based Awards, Performance Awards, or any other equity-based compensation (collectively, "Equity Awards") granted on or after November 13, 2000, shall continue in effect or, if such continuation is not possible, shall be equitably converted to equivalent Equity Awards of any successor entity such that the relative value of the Equity Awards is the same following conversion as the value immediately prior to the conversion, or, if such continuation or conversion is not possible (but only if it is not possible), then all such Equity Awards shall either (a) become fully vested and exercisable in accordance with the LTIP or (b) at the Company's sole and absolute discretion, but subject Section 4.(f)(iv) below, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock for each such Award (in the case of Restricted Stock, Performance Shares, Deferred Stock or similar Awards), plus the excess (if any, including a deemed distribution of $0) of the Change in Control Price (as defined in section 11.(d) of the Company's 1996 Long-Term Incentive Plan or section 12.(d) of the Company's Amended and Restated 1996 Long-Term Incentive Plan, as applicable) of the Company's stock over the exercise price or base amount (such excess hereinafter referred to as the "Spread Amount"), multiplied by the number of such Awards (in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer all such Equity Awards to the Company in exchange for such payment by the Company. Alternatively, if it would yield a greater amount, in lieu of paying such Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Spread Amount and fair value. (iii) Notwithstanding anything to the contrary in the LTIP or in any stock option agreement, if any Equity Awards are not vested or cashed out in accordance with 4.(f)(ii) above, then, if the Executive is involuntarily terminated without Cause or voluntarily terminates for Good Reason and the Termination Date occurs within two (2) years after a Change in Control (as defined hereunder), then either (a) such Equity Awards shall become fully vested and, if subject to an exercise right, shall remain fully exercisable for until at least three (3) months the fifteenth day of the third month following such termination (or, if longer, pursuant to the terms of such Equity Awards), or (b) at the Company's sole and absolute discretion, but subject Section 4.(f)(v) below, any or all of such Equity Awards shall be immediately cashed out (i.e., settled in cash) by the Company by paying the Executive in cash the fair market value of the Company's stock on the Termination Date (and not the Change in Control date) for each such award (in the case of Restricted Stock, Performance Shares, Deferred Stock or similar awards), plus the excess (if any, including a deemed distribution of $0) of the fair market value of the Company's stock on the Termination Date (and not the Change in Control date) over the exercise price or base amount (such excess hereinafter referred to as the "Termination Spread Amount"), multiplied by the number of such Awards (in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount), net of any required withholding, and the Executive will transfer such Equity Awards to the Company in exchange for such payment. Alternatively, if it would yield a greater amount, in lieu of paying such Termination Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Options, Stock Rights or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Termination Spread Amount and fair value. In addition, if the Executive is terminated without Cause within one hundred eighty (180) days prior to a Change in Control and any Equity Award previously granted to him is forfeited or cancelled within such one hundred eighty (180) day period, then upon the Change in Control, the Executive will be entitled to a cash payment as if such Equity Award had been cashed out (i.e., settled in cash) based on either the excess (if any, including a deemed distribution of $0) of the fair market value of the Company's stock at the Executive's termination of employment date (and not the Change in Control date) over the exercise price or base amount, if any, of the Equity Award, in the case of Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount (such excess hereinafter referred to as the "Termination Spread Amount") or, in the case of Restricted Stock, Performance Shares, Deferred Stock, or similar Awards, based on the fair market value of the Company's stock at the Executive's termination of employment date, in either case net of any required withholding. Alternatively, if it would yield a greater amount, in lieu of paying such Termination Spread Amount, the Company, in its sole and absolute discretion, may cash out (i.e., settle in cash) such Stock Options, Stock Appreciation Rights or other awards involving an exercise price or spread amount based on either the "fair value" of the Stock Option, Stock Appreciation Right or other awards involving an exercise price or spread amount under Generally Accepted Accounting Principles (as determined through the Black-Scholes, binomial, or any other option pricing model permissible under FAS 123 or a successor standard) or any other amount between the Termination Spread Amount and fair value. (iv) Notwithstanding anything to the contrary in this Agreement or the Addendum, in no event shall amounts in respect of any Equity Award (or portion thereof) that, as determined by the Company, provides for the "deferral of compensation" (as such term is defined under Section 409A of the Code and the regulations and other Treasury Department guidance promulgated thereunder (collectively, "Section 409A")), that was granted or became vested on or after January 1, 2005, be distributed pursuant to Sections 4.(f)(i) or 4.(f)(ii) prior to the occurrence of either (i) the Termination Date (or such later date required under Section 7), (ii) the Executive's death or "disability" (as such term is defined under Section 409A), or (iii) a "change in the ownership or effective control" of the Company or in the "ownership of a substantial portion of the assets" of the Company (each as defined under Section 409A). (v) Notwithstanding anything to the contrary in this Agreement or the Addendum, in no event shall amounts in respect of any Equity Award (or portion thereof) that, as determined by the Company, provides for the "deferral of compensation" (as such term is defined under Section 409A of the Code and the regulations and other Treasury Department guidance promulgated thereunder (collectively, "Section 409A")), that was granted or became vested on or after January 1, 2005, be distributed pursuant to Section 4.(f)(iii) prior to the occurrence of the Termination Date or such later date required under Section 7.