Common use of Termination Upon Certain Changes in Control Clause in Contracts

Termination Upon Certain Changes in Control. If a Change in Control Event (as defined below in Section 7(c)(iv)) shall occur and, if within the twelve-month period immediately following the Change in Control Event, (1) the Company or its successor terminates Executive's employment without Cause, or (2) Executive terminates his employment on account of a Material Change (as defined below in Section 7(c)(iii)), Executive shall receive a lump sum severance payment equal to two times the sum of (a) the amount otherwise payable under Section 7(b), (b) the average annual Cash Bonus paid to the Executive for the preceding three fiscal years (or since the Executive's date of hire if less than three years), and (c) the retention bonus otherwise payable pursuant to Section 6(g). Executive shall be entitled to the accelerated vesting of all options and restricted stock awards issued to Executive and all options held by Executive on the termination date shall be exercisable for the remainder of their original term. The lump sum payment shall be made within 30 days following Executive's termination of employment, subject to the provisions of Section 7(g). (i) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(c)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an “excess parachute payment” under Section 4999 of the Internal Revenue Code (the “Code”), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's “base amount,” as defined in Code Section 280G(b)(3) and the regulations promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(c)(i)(b), next the amount determined under Section 7(c)(i)(a), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in “excess parachute payments” called for in this Section 7(c)(ii) shall be made by an independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations. (ii) For purposes of this Agreement, a “Material Change” shall occur if, without Executive's consent: A. There is a material diminution in Executive's Base Salary (from the amount in effect on the date of the Change in Control); B. There is a material diminution in Executive's authority, duties, or responsibilities; C. There is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report; D. There is a material diminution in the budget over which Executive retains authority; E. There is a material change in the geographic location at which Executive is required to perform services; or F. There is any other action or inaction that constitutes a material breach of this Agreement. G. There is any other action or inaction by the Company that, in Executive's sole judgment, represents a material diminution in the characteristics of Executive's employment, including but not limited to the quality, work hours required, travel required or other material aspect of Executive's employment. The occurrence of any of the conditions constitute a Material Change provided the Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and the Employer fails to cure such condition to Executive's reasonable satisfaction within 10 days following the date of Executive's notice.

Termination Upon Certain Changes in Control. If a “Change in Control Event Event” (as defined below in Section 7(c)(iv)below) shall occur occurs during the Term and, if within the twelve-twenty four (24) month period immediately following the Change in Control Event, (1i) the Company Employer or its successor terminates Executive's ’s employment without Cause, or (2ii) Executive terminates his employment on account of a “Material Change Change” (as defined below in Section 7(c)(iii)below), Executive shall receive be entitled to: (1) the Accrued Obligations; and (2) a lump sum severance cash payment equal to two times the sum twelve (12) months of (a) the amount otherwise payable under Section 7(b), (b) Executive’s then Base Salary plus the average annual Discretionary Cash Bonus paid to the Executive for the preceding three fiscal (3) calendar years plus an amount equal to the product of (or since the Executive's date of hire if less than three years), y) 66% and (cz) six (6) times the retention bonus otherwise payable pursuant monthly amount that is charged to Section 6(gCOBRA qualified beneficiaries for the same medical coverage options elected by Executive immediately prior to the termination date (the amounts described in (2) are collectively referred to herein as the “Change in Control Severance Benefit”). Executive The Change in Control Severance Benefit, if any, shall be entitled paid in a single lump sum (i). In addition to the accelerated vesting Change in Control Severance Benefit, all of all the outstanding (but unvested) options and restricted stock awards issued to Executive and all options held by Executive on the termination date shall be become fully vested and exercisable for the remainder of their original term. The lump sum payment shall be made within 30 days following Executive's termination of employment, subject to the provisions of Section 7(g). (i) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(c)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an “excess parachute payment” under Section 4999 of the Internal Revenue Code (the “Code”), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's “base amount,” as defined in Code Section 280G(b)(3) and the regulations promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(c)(i)(b), next the amount determined under Section 7(c)(i)(a), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in “excess parachute payments” called for in this Section 7(c)(ii) shall be made by an independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations. (ii) For purposes of this Agreement, a “Material Change” shall occur if, without Executive's ’s consent: A. There : (A) there is a material diminution in Executive's ’s Base Salary (from the amount in effect on the date of the Change in ControlControl Event); B. There ; (B) there is a material diminution in Executive's ’s authority, duties, or responsibilities; C. There ; (C) there is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report; D. There ; (D) there is a material diminution in the budget over which Executive retains authority; E. There ; (E) there is a material change in the geographic location at which Executive is required to perform services; or F. There or (F) there is any other action or inaction that constitutes a material breach of this Agreement. Notwithstanding the foregoing, neither condition shall constitute “Material Change” unless Executive provides notice to Employer within ninety (90) days of the initial existence of the condition and Employer fails to cure the condition within thirty (30) days of the date of Executive’s notice, upon which failure to cure Executive’s employment shall terminate immediately with Material Change. G. There is any other action or inaction by (ii) For purposes of this Agreement, “Change in Control Event” means the Company that, in Executive's sole judgment, represents a material diminution in the characteristics of Executive's employment, including but not limited to the quality, work hours required, travel required or other material aspect of Executive's employment. The occurrence of any of the conditions constitute a Material Change provided the Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and the Employer fails to cure such condition to Executive's reasonable satisfaction within 10 days following the date of Executive's notice.following:

Termination Upon Certain Changes in Control. If a “Change in Control Event Event” (as defined below in Section 7(c)(iv)below) shall occur occurs during the Term and, if within the twelve-twenty four (24) month period immediately following the Change in Control Event, (1i) the Company Employer or its successor terminates Executive's ’s employment without Cause, or (2ii) Executive terminates his employment on account of a “Material Change Change” (as defined below in Section 7(c)(iii)below), Executive shall receive be entitled to: (1) the Accrued Obligations; and (2) a lump sum severance cash payment equal to two times the sum twenty four (24) months of (a) the amount otherwise payable under Section 7(b), (b) Executive’s then Base Salary plus the average annual Discretionary Cash Bonus paid to the Executive for the preceding three fiscal (3) calendar years plus an amount equal to the product of (or since the Executive's date of hire if less than three years), y) 66% and (cz) six (6) times the retention bonus otherwise payable pursuant monthly amount that is charged to Section 6(gCOBRA qualified beneficiaries for the same medical coverage options elected by Executive immediately prior to the termination date (the amounts described in (2) are collectively referred to herein as the “Change in Control Severance Benefit”). Executive The Change in Control Severance Benefit, if any, shall be entitled paid in a single lump sum cash payment during the first payroll period following the expiration of the release revocation period described in Section 6(i). In addition to the accelerated vesting Change in Control Severance Benefit, all of all the outstanding (but unvested) options and restricted stock awards issued to Executive and all options held by Executive on the termination date shall be become fully vested and exercisable for the remainder of their original term. The lump sum payment shall be made within 30 days following Executive's termination of employment, subject to the provisions of Section 7(g). (i) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(c)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an “excess parachute payment” under Section 4999 of the Internal Revenue Code (the “Code”), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's “base amount,” as defined in Code Section 280G(b)(3) and the regulations promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(c)(i)(b), next the amount determined under Section 7(c)(i)(a), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in “excess parachute payments” called for in this Section 7(c)(ii) shall be made by an independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations. (ii) For purposes of this Agreement, a “Material Change” shall occur if, without Executive's ’s consent: A. There : (A) there is a material diminution in Executive's ’s Base Salary (from the amount in effect on the date of the Change in ControlControl Event); B. There ; (B) there is a material diminution in Executive's ’s authority, duties, or responsibilities; C. There ; (C) there is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report; D. There ; (D) there is a material diminution in the budget over which Executive retains authority; E. There ; (E) there is a material change in the geographic location at which Executive is required to perform services; or F. There or (F) there is any other action or inaction that constitutes a material breach of this Agreement. Notwithstanding the foregoing, neither condition shall constitute “Material Change” unless Executive provides notice to Employer within ninety (90) days of the initial existence of the condition and Employer fails to cure the condition within thirty (30) days of the date of Executive’s notice, upon which failure to cure Executive’s employment shall terminate immediately with Material Change. G. There is any other action or inaction by ii) For purposes of this Agreement, “Change in Control Event” means the Company that, in Executive's sole judgment, represents a material diminution in the characteristics of Executive's employment, including but not limited to the quality, work hours required, travel required or other material aspect of Executive's employment. The occurrence of any of the conditions constitute a Material Change provided the Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and the Employer fails to cure such condition to Executive's reasonable satisfaction within 10 days following the date of Executive's notice.following:

Termination Upon Certain Changes in Control. If a Change in Control Event (as defined below in Section 7(c)(iv)) shall occur and, if within the twelve-month period immediately following the Change in Control Event, (1) the Company or its successor terminates Executive's ’s employment without Cause, or (2) Executive terminates his employment on account of a Material Change (as defined below in Section 7(c)(iii)), Executive shall receive a lump sum severance payment equal to two times the sum of (a) the amount otherwise payable under Section 7(b), (b) the average annual Cash Bonus paid to the Executive for the preceding three fiscal years (or since the Executive's ’s date of hire if less than three years), and (c) the retention bonus otherwise payable pursuant to Section 6(g). Executive shall be entitled to the accelerated vesting of all options and restricted stock awards issued to Executive and all options held by Executive on the termination date shall be exercisable for the remainder of their original term. The lump sum payment shall be made within 30 days following Executive's ’s termination of employment, subject to the provisions of Section 7(g). (i) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(c)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an “excess parachute payment” under Section 4999 of the Internal Revenue Code (the “Code”), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's ’s “base amount,” as defined in Code Section 280G(b)(3) and the regulations 4 promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(c)(i)(b), next the amount determined under Section 7(c)(i)(a), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in “excess parachute payments” called for in this Section 7(c)(ii) shall be made by an independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations. (ii) For purposes of this Agreement, a “Material Change” shall occur if, without Executive's ’s consent: A. There is a material diminution in Executive's ’s Base Salary (from the amount in effect on the date of the Change in Control); B. There is a material diminution in Executive's ’s authority, duties, or responsibilities; C. There is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report; D. There is a material diminution in the budget over which Executive retains authority; E. There is a material change in the geographic location at which Executive is required to perform services; or F. There is any other action or inaction that constitutes a material breach of this Agreement. G. There is any other action or inaction by the Company that, in Executive's ’s sole judgment, represents a material diminution in the characteristics of Executive's ’s employment, including but not limited to the quality, work hours required, travel required or other material aspect of Executive's ’s employment. The occurrence of any of the conditions constitute a Material Change provided the Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and the Employer fails to cure such condition to Executive's ’s reasonable satisfaction within 10 days following the date of Executive's ’s notice.

Termination Upon Certain Changes in Control. If a Change in Control Event (as defined below in Section 7(c)(iv)) shall occur and, if within the twelve-month period immediately following the Change in Control Event, (1) the Company or its successor terminates Executive's employment without Cause, or (2) Executive terminates his employment on account of a Material Change (as defined below in Section 7(c)(iii)), Executive shall receive a lump sum severance payment equal to two times the sum of (a) the amount otherwise payable under Section 7(b), (b) the average annual Cash Bonus paid to the Executive for the preceding three fiscal years (or since the Executive's date of hire if less than three years)) and, and (c) the retention bonus otherwise payable pursuant to Section 6(g). Executive shall be entitled to the accelerated vesting of all options and restricted stock awards issued to Executive and all options held by Executive on the termination date shall be exercisable for the remainder of their original term. The lump sum payment shall be made within 30 days following Executive's termination of employment, subject to the provisions of Section 7(g). (i) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(c)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an “excess parachute payment” under Section 4999 of the Internal Revenue Code (the “Code”), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's “base amount,” as defined in Code Section 280G(b)(3) and the regulations promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(c)(i)(b), next the amount determined under Section 7(c)(i)(a), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in “excess parachute payments” called for in this Section 7(c)(ii) shall be made by an independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations. (ii) For purposes of this Agreement, a “Material Change” shall occur if, without Executive's consent: A. There is a material diminution in Executive's Base Salary (from the amount in effect on the date of the Change in Control); B. There is a material diminution in Executive's authority, duties, or responsibilities; C. There is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report; D. There is a material diminution in the budget over which Executive retains authority; E. There is a material change in the geographic location at which Executive is required to perform services; or F. There is any other action or inaction that constitutes a material breach of this Agreement. G. There is any other action or inaction by the Company that, in Executive's sole judgment, represents a material diminution in the characteristics of Executive's employment, including but not limited to the quality, work hours required, travel required or other material aspect of Executive's employment. The occurrence of any of the conditions constitute a Material Change provided the Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and the Employer fails to cure such condition to Executive's reasonable satisfaction within 10 days following the date of Executive's notice.

Termination Upon Certain Changes in Control. If a Change in Control Event (as defined below in Section 7(c)(iv)) shall occur and, if within the twelve-month period immediately following the Change in Control Event, (1) the Company or its successor terminates Executive's employment without Cause, or (2) Executive terminates his employment on account of a Material Change (as defined below in Section 7(c)(iii)), Executive shall receive a lump sum severance payment equal to two times the sum of (a) the amount otherwise payable under Section 7(b), (b) the average annual Cash Bonus paid to the Executive for the preceding three fiscal years (or since the Executive's date of hire if less than three years), and (c) the retention bonus otherwise payable pursuant to Section 6(g). Executive shall be entitled to the accelerated vesting of all options and restricted stock awards issued to Executive and all options held by Executive on the termination date shall be exercisable for the remainder of their original term. The lump sum payment shall be made within 30 days following Executive's termination of employment, subject to the provisions of Section 7(g). (i) Notwithstanding anything to the contrary herein, if the aggregate amounts payable pursuant to Section 7(c)(i), either alone or together with any other payments which Executive has the right to receive either directly or indirectly from Employer or any of its affiliates, would be subject to an excise tax as an “excess parachute payment” under Section 4999 of the Internal Revenue Code (the “Code”), Executive hereby agrees that such aggregate amounts payable hereunder shall be reduced to an amount that does not exceed 2.99 times Executive's “base amount,” as defined in Code Section 280G(b)(3) and the regulations promulgated thereunder. The aggregate amount shall be reduced in the following order: first, the amount determined under Section 7(c)(i)(b), next the amount determined under Section 5 7(c)(i)(a), and finally, the amount attributable to the acceleration of vesting of options and restricted stock. All determinations of, and reductions in “excess parachute payments” called for in this Section 7(c)(ii) shall be made by an independent public accounting firm with a national reputation as shall be selected by Employer. Employer shall bear all costs associated with obtaining such determinations. (ii) For purposes of this Agreement, a “Material Change” shall occur if, without Executive's consent: A. There is a material diminution in Executive's Base Salary (from the amount in effect on the date of the Change in Control); B. There is a material diminution in Executive's authority, duties, or responsibilities; C. There is a material diminution in the authority, duties, or responsibilities of the supervisor (the Chief Executive Officer) to whom Executive is required to report; D. There is a material diminution in the budget over which Executive retains authority; E. There is a material change in the geographic location at which Executive is required to perform services; or F. There is any other action or inaction that constitutes a material breach of this Agreement. G. There is any other action or inaction by the Company that, in Executive's sole judgment, represents a material diminution in the characteristics of Executive's employment, including but not limited to the quality, work hours required, travel required or other material aspect of Executive's employment. The occurrence of any of the conditions constitute a Material Change provided the Executive gives written notice to Employer of the existence of the condition giving rise to a Material Change and the Employer fails to cure such condition to Executive's reasonable satisfaction within 10 days following the date of Executive's notice.