Common use of Termination Prior to Change in Control Clause in Contracts

Termination Prior to Change in Control. If, prior to a Change in Control (including a situation in which a Change in Control never occurs), the Company terminates the Executive's employment other than for Cause, Disability or death, then notwithstanding anything to the contrary contained in any prior agreement, the Executive shall be entitled to benefits described in subsections (a) through (d) below, the distribution of which shall be subject to the provisions of Sections 5.4, 5.5 and 5.8. (a) The Company shall pay to the Executive on the Termination Date, in a lump sum, in cash (less applicable withholdings), (i) all base salary and accrued vacation pay earned by the Executive through the Termination Date (the "Accrued Obligations"); and (ii) the Executive's actual incentive bonus earned, based on the achievement of corporate and individual goals through the date of Executive's termination; provided however, that if any portion of the Executive's actual incentive bonus earned is not determinable as of the date of termination, Executive shall receive for that portion an amount equal to the pro rated portion of Executive's annual target bonus, based upon the number of days during such calendar year that the Executive had been employed prior to the Termination Date. (b) During the Severance Period, the Company shall continue to pay to the Executive, in accordance with the Company's regular payroll practices, the Executive's base salary. (c) During the Severance Period, the Company shall continue to provide coverage to the Executive in accordance with and subject to the terms of the applicable welfare benefit plans of the Company in effect on the Termination Date; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer, then the Company shall no longer be required to provide those particular benefits to the Executive. (d) With respect to any stock options granted to the Executive by the Company prior to the Termination Date: (i) any such stock options that are unvested as of the Termination Date shall continue to vest through the Severance Period; and (ii) all such stock options shall remain exercisable by the Executive for ninety (90) days following the conclusion of the Severance Period but in no event beyond the maximum term of any such stock options. The Executive acknowledges and agrees that the provisions of this Section 5.1(d) shall cause all stock options which had previously been qualified as Incentive Stock Options under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code", which term shall include applicable Treasury Regulations) to become non-qualified options and lose, irrevocably, any tax-advantaged treatment previously available, except to the extent that the effectiveness of such provisions would permit such options to qualify as a grant of new Incentive Stock Options under Section 422 (in which case the exception shall be applied by the Company to the Options with the lowest exercise prices as Incentive Stock Options up to the $100,000 limit in Section 422).

Termination Prior to Change in Control. If, prior to a Change in Control (including a situation in which a Change in Control never occurs), the Company terminates the Executive's employment other than for Cause, Disability or death, then notwithstanding anything to the contrary contained in any prior agreement, the Executive shall be entitled to benefits described in subsections (a) through (d) below, the distribution of which shall be subject to the provisions of Sections 5.4, 5.5 and 5.8. (a) The Company shall pay to the Executive on the Termination Date, in a lump sum, in cash (less applicable withholdings), (i) all base salary and accrued vacation pay earned by the Executive through the Termination Date (the "Accrued Obligations"); and (ii) the Executive's actual incentive bonus earned, based on the achievement of corporate and individual goals through the date of Executive's termination; provided however, that if any portion of the Executive's actual incentive bonus earned is not determinable as of the date of termination, Executive shall receive for that portion an amount equal to the pro rated portion of Executive's annual target bonus, based upon the number of days during such calendar year that the Executive had been employed prior to the Termination Date. (b) During the Severance Period, the Company shall continue to pay to the Executive, in accordance with the Company's regular payroll practices, the Executive's base salary. (c) During the Severance Period, the Company shall continue to provide coverage to the Executive in accordance with and subject to the terms of the applicable welfare benefit plans of the Company in effect on the Termination Date; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer, then the Company shall no longer be required to provide those particular benefits to the Executive. (d) With respect to any stock options Awards granted to the Executive by the Company prior to the Termination Date: (i) any such stock options Awards that are subject to time-based vesting and are unvested as of the Termination Date shall continue to vest through the Severance Period; and; (ii) all such Awards that have an exercise period, including without limitation stock options options, shall remain exercisable by the Executive for ninety (90) days following the conclusion of the Severance Period but in no event beyond the maximum term of any such stock optionsAward; and (iii) any performance-based Awards shall have such terms as are set forth in the grant agreement applicable thereto. The Executive acknowledges and agrees that the provisions of this Section 5.1(d) shall may cause all stock options which had previously been qualified as Incentive Stock Options under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code", which term shall include applicable Treasury Regulations) to become non-qualified options and lose, irrevocably, any tax-advantaged treatment previously available, except to the extent that the effectiveness of such provisions would permit such options to qualify as a grant of new Incentive Stock Options under Section 422 (in which case the exception shall be applied by the Company to the Options with the lowest exercise prices as Incentive Stock Options up to the $100,000 limit in Section 422).

Termination Prior to Change in Control. If, prior to a Change in Control (including a situation in which a Change in Control never occurs), the Company terminates the Executive's employment other than for Cause, Disability or death, then notwithstanding anything to the contrary contained in any prior agreement, the Executive shall be entitled to benefits described in subsections (a) through (d) below, the distribution of which shall be subject to the provisions of Sections 5.4, 5.5 and 5.8. (a) The Company shall pay to the Executive on the Termination Date, in a lump sum, in cash (less applicable withholdings), (i) all base salary and accrued vacation pay earned by the Executive through the Termination Date (the "Accrued Obligations"); and (ii) the Executive's actual incentive bonus earned, based on the achievement of corporate and individual goals through the date of Executive's termination; provided however, that if any portion of the Executive's actual incentive bonus earned is not determinable as of the date of termination, Executive shall receive for that portion an amount equal to the pro rated portion of Executive's annual target bonus, based upon the number of days during such calendar year that the Executive had been employed prior to the Termination Date. (b) During the Severance Period, the Company shall continue to pay to the Executive, in accordance with the Company's regular payroll practices, the Executive's base salary. (c) During the Severance Period, the Company shall continue to provide coverage to the Executive in accordance with and subject to the terms of the applicable welfare benefit plans of the Company in effect on the Termination Date; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer, then the Company shall no longer be required to provide those particular benefits to the Executive. (d) With respect to any stock options Awards granted to the Executive by the Company prior to the Termination Date: (i) any such stock options Awards that are subject to time-based vesting and are unvested as of the Termination Date shall continue to vest through the Severance Period; and; (ii) all such Awards that have an exercise period, including without limitation stock options options, shall remain exercisable by the Executive for ninety (90) days following the conclusion of the Severance Period but in no event beyond the maximum term of any such stock options. Award; and (iii) any performance-based Awards shall have such terms as are set forth in the grant agreement applicable thereto The Executive acknowledges and agrees that the provisions of this Section 5.1(d) shall may cause all stock options which had previously been qualified as Incentive Stock Options under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code", which term shall include applicable Treasury Regulations) to become non-qualified options and lose, irrevocably, any tax-advantaged treatment previously available, except to the extent that the effectiveness of such provisions would permit such options to qualify as a grant of new Incentive Stock Options under Section 422 (in which case the exception shall be applied by the Company to the Options with the lowest exercise prices as Incentive Stock Options up to the $100,000 limit in Section 422).