Common use of Treatment of Equity Upon a Change in Control Clause in Contracts

Treatment of Equity Upon a Change in Control. Upon the occurrence, prior to the termination of this Agreement as provided for by Section 2 above, of a Change in Control, the Executive shall be entitled to receive the following payments and benefits from the Company: (a) the restrictions imposed upon the sale, transfer or other conveyance of any restricted stock held by the Executive pursuant to the terms of any restricted stock agreement or any other plan or agreement shall terminate and cease to exist, and such stock shall thereafter be free from all such restrictions; (b) if, following the occurrence of a Change in Control, the Company's legal existence continues and the proportionate number of the issued and outstanding shares of common stock of the Company (on a fully diluted basis) which may be purchased by the Executive after the occurrence of the Change in Control pursuant to the exercise of his options and for a price equal to the Aggregate Exercise Price of the Executive's options (determined immediately prior to the occurrence of the Change in Control), is at least equal to the proportionate number of the issued and outstanding shares of common stock of the Company which could have been purchased by the Executive pursuant to the exercise by the Executive of all of his options, immediately prior to the Change in Control (including any shares of the Company's common stock which may be acquired by the Executive as a result of adjustments made after the occurrence of a Change in Control to the terms of the options which the Executive held prior to the occurrence of the Change in Control, which adjustments provide the Executive the right to acquire more shares of the Company's common stock for the same Aggregate Exercise Price and shares of the Company's common stock which may be acquired by the Executive pursuant to the exercise of additional options granted to the Executive immediately following the Change in Control which are immediately exercisable in full), then, all options to purchase the Company's common stock which were granted to the Executive prior to the occurrence of the Change in Control shall immediately become fully exercisable by the Executive; (c) if, following the occurrence of a Change in Control: (i) the Company's legal existence continues but the number of shares of common stock of the Company which the Executive is entitled to purchase pursuant to the exercise of all options to purchase the Company's common stock which are owned by the Executive immediately following the Change in Control for a price which is not more than the Aggregate Exercise Price of his unexercised options immediately prior to the occurrence of the Change in Control, is not, on a fully diluted basis, at least equal to the same proportion, on a fully diluted basis, of the issued and outstanding shares of common stock of the Company which could have been purchased by the Executive pursuant to the exercise of all of his options immediately prior to the occurrence of the Change in Control; or (ii) the common stock of the Company is no longer listed for trading on an established securities market and the Successor has not, effective as of the date the Change in Control occurs, offered to grant Conversion Options to the Executive in lieu of the options of the Executive to purchase common stock of the Company; or (iii) the common stock of the Company is no longer listed for trading on an established securities market and the Successor has offered to grant Conversion Options to the Executive effective as of the date the Change in Control occurs (in lieu of the Executive's options to purchase common stock of the Company) but the Executive has elected not to accept such grant of Conversion Options; then (iv) the the options shall be deemed to be exercised upon the date of Change in Control and the following “put” right shall be automatically exercised, without any further action required by the Executive. In consideration of the sale of the shares resulting from such exercise, or in a “net exercise” procedure, the Executive shall be paid, in one lump sum payment not later than 30 days following the occurrence of the Change in Control, the amount of the Built In Gain on the options to purchase common stock of the Company which were issued to the Executive and outstanding and unexercised (whether or not then vested and exercisable) on the date the Change in Control occurs and, thereafter, all such options shall be deemed to have been exercised and shall for all purposes be deemed and construed to be null and void; and (d) to the extent not otherwise provided above, any equity based incentive compensation award, including but not limited to options, stock appreciation rights, restricted stock units and performance stock units, shall vest and: (i) in the case of options and stock appreciation rights, become fully exercisable; and (ii) in the case of restricted stock units and performance stock units, subject to Section 17 below, shall be issued as shares of common stock of the Company or paid in cash or immediately available funds, whichever form of payment is contemplated by such award, in each case with the amount of the shares of common stock of the Company to be issued or the amount of cash or immediately available funds to be paid being determined, if applicable, at the targeted level of performance.

Treatment of Equity Upon a Change in Control. Upon (a) Options held by you granted under a Stock Incentive Plan shall fully vest upon the occurrence, prior to the termination of this Agreement as provided for by Section 2 above, date of a Change in Control, . Unless the Executive shall be entitled Committee has determined to receive the following payments and benefits from the Company: (a) the restrictions imposed upon the sale, transfer make an equitable adjustment or other conveyance substitution of any restricted stock held by the Executive options pursuant to the terms of any restricted stock agreement or any other plan or agreement the applicable Stock Incentive Plan, all options held by you granted under a Stock Incentive Plan shall terminate and cease be surrendered to exist, the Company by you and such stock options shall thereafter be free from all such restrictions; (b) if, following the occurrence of a Change in Control, canceled by the Company's legal existence continues and the proportionate number of the issued and outstanding shares of common stock of , in exchange for a cash payment by the Company (on a fully diluted basis) which may be purchased by the Executive within ten days after the occurrence of the Change in Control pursuant to the exercise of his options and for a price in an amount equal to the Aggregate Exercise Price number of shares of the Executive's options Company’s common stock subject to your option multiplied by the Xx. Xxxxxxx Xxxxx August 14, 2008 Page 6 difference between (determined immediately prior to x) and (y) where (x) equals the occurrence closing sale price of the Change in Control), is at least equal to the proportionate number of the issued and outstanding shares a share of common stock on any exchange on which such shares are traded or quoted as of the Company which could have been purchased by the Executive pursuant to the exercise by the Executive of all of his options, date immediately prior to the Change in Control and (including any shares y) equals the purchase price per share covered by the option. (b) In the event of a Change in Control, restricted stock held by you granted under a Stock Incentive Plan shall immediately vest, and all forfeiture restrictions shall immediately expire, as of the Company's common stock date of the Change in Control. (c) In the event of a Change in Control, performance units held by you granted under a Stock Incentive Plan for which may be acquired by the Executive performance period has not expired as a result of adjustments made after the occurrence date of a Change in Control shall be deemed to be earned at the target performance level. Unless the Committee determines otherwise, you shall have the right to receive the same form of equity or other consideration as all other shareholders with respect to the terms common stock subject to the earned performance units. The common stock or other property subject to the earned performance units shall be delivered to you within ten days of the options which the Executive held prior to the occurrence date of the Change in Control. Notwithstanding the foregoing, which adjustments provide if the Executive the right to acquire more shares performance units are non-qualified deferred compensation under Section 409A of the Company's common stock for Code, the same Aggregate Exercise Price and shares of the Company's common stock which may be acquired by the Executive pursuant to the exercise of additional options granted to the Executive immediately following performance units shall vest only if the Change in Control which are immediately exercisable in fullsatisfies the requirements of Treasury Regulations Section 1.409A-3(i)(5), then, all options to purchase the Company's common stock which were granted to the Executive prior to the occurrence of the Change in Control shall immediately become fully exercisable by the Executive; (c) if, following the occurrence of a Change in Control: (i) the Company's legal existence continues but the number of shares of common stock of the Company which the Executive is entitled to purchase pursuant to the exercise of all options to purchase the Company's common stock which are owned by the Executive immediately following the Change in Control for a price which is not more than the Aggregate Exercise Price of his unexercised options immediately prior to the occurrence of the Change in Control, is not, on a fully diluted basis, at least equal to the same proportion, on a fully diluted basis, of the issued and outstanding shares of common stock of the Company which could have been purchased by the Executive pursuant to the exercise of all of his options immediately prior to the occurrence of the Change in Control; or (ii) the common stock of the Company is no longer listed for trading on an established securities market and the Successor has not, effective as of the date the Change in Control occurs, offered to grant Conversion Options to the Executive in lieu of the options of the Executive to purchase common stock of the Company; or (iii) the common stock of the Company is no longer listed for trading on an established securities market and the Successor has offered to grant Conversion Options to the Executive effective as of the date the Change in Control occurs (in lieu of the Executive's options to purchase common stock of the Company) but the Executive has elected not to accept such grant of Conversion Options; then (iv) the the options shall be deemed to be exercised upon the date of Change in Control and the following “put” right shall be automatically exercised, without any further action required by the Executive. In consideration of the sale of the shares resulting from such exercise, or in a “net exercise” procedure, the Executive shall be paid, in one lump sum payment not later than 30 days following the occurrence of the Change in Control, the amount of the Built In Gain on the options to purchase common stock of the Company which were issued to the Executive and outstanding and unexercised (whether or not then vested and exercisable) on the date the Change in Control occurs and, thereafter, all such options shall be deemed to have been exercised and shall for all purposes be deemed and construed to be null and void; and (d) to the extent not otherwise provided above, any equity based incentive compensation award, including but not limited to options, stock appreciation rights, restricted stock units and performance stock units, shall vest and: (i) in the case of options and stock appreciation rights, become fully exercisable; and (ii) in the case of restricted stock units and performance stock units, subject to Section 17 below, shall be issued as shares of common stock of the Company or paid in cash or immediately available funds, whichever form of payment is contemplated by such award, in each case with the amount of the shares of common stock of the Company to be issued or the amount of cash or immediately available funds to be paid being determined, if applicable, at the targeted level of performance.

Treatment of Equity Upon a Change in Control. Upon (a) Options held by you granted under a Stock Incentive Plan shall fully vest upon the occurrence, prior to the termination of this Agreement as provided for by Section 2 above, date of a Change in Control, . Unless the Executive shall be entitled Committee has determined to receive the following payments and benefits from the Company: (a) the restrictions imposed upon the sale, transfer make an equitable adjustment or other conveyance substitution of any restricted stock held by the Executive options pursuant to the terms of any restricted stock agreement or any other plan or agreement the applicable Stock Incentive Plan, all options held by you granted under a Stock Incentive Plan shall terminate and cease be surrendered to exist, the Company by you and such stock options shall thereafter be free from all such restrictions; (b) if, following the occurrence of a Change in Control, canceled by the Company's legal existence continues and the proportionate number of the issued and outstanding shares of common stock of , in exchange for a cash payment by the Company (on a fully diluted basis) which may be purchased by the Executive within ten days after the occurrence of the Change in Control pursuant to the exercise of his options and for a price in an amount equal to the Aggregate Exercise Price number of shares of the Executive's options Company’s common stock subject to your option multiplied by the difference between (determined immediately prior to x) and (y) where (x) equals the occurrence closing sale price of the Change in Control), is at least equal to the proportionate number of the issued and outstanding shares a share of common stock on any exchange on which such shares are traded or quoted as of the Company which could have been purchased by the Executive pursuant to the exercise by the Executive of all of his options, date immediately prior to the Change in Control and (including any shares y) equals the purchase price per share covered by the option. (b) In the event of a Change in Control, restricted stock held by you granted under a Stock Incentive Plan shall immediately vest, and all forfeiture restrictions shall immediately expire, as of the Company's common stock date of the Change in Control. (c) In the event of a Change in Control, performance units held by you granted under a Stock Incentive Plan for which may be acquired by the Executive performance period has not expired as a result of adjustments made after the occurrence date of a Change in Control shall be deemed to be earned at the target performance level. Unless the Committee determines otherwise, you shall have the right to receive the same form of equity or other consideration as all other shareholders with respect to the terms common stock subject to the earned performance units. The common stock or other property subject to the earned performance units shall be delivered to you within ten days of the options which the Executive held prior to the occurrence date of the Change in Control. Notwithstanding the foregoing, which adjustments provide if the Executive the right to acquire more shares performance units are non-qualified deferred compensation Xx. Xxxx X. Clerico June 15, 2009 Page 6 under Section 409A of the Company's common stock for Code, the same Aggregate Exercise Price and shares of the Company's common stock which may be acquired by the Executive pursuant to the exercise of additional options granted to the Executive immediately following performance units shall vest only if the Change in Control which are immediately exercisable in fullsatisfies the requirements of Treasury Regulations Section 1.409A-3(i)(5), then, all options to purchase the Company's common stock which were granted to the Executive prior to the occurrence of the Change in Control shall immediately become fully exercisable by the Executive; (c) if, following the occurrence of a Change in Control: (i) the Company's legal existence continues but the number of shares of common stock of the Company which the Executive is entitled to purchase pursuant to the exercise of all options to purchase the Company's common stock which are owned by the Executive immediately following the Change in Control for a price which is not more than the Aggregate Exercise Price of his unexercised options immediately prior to the occurrence of the Change in Control, is not, on a fully diluted basis, at least equal to the same proportion, on a fully diluted basis, of the issued and outstanding shares of common stock of the Company which could have been purchased by the Executive pursuant to the exercise of all of his options immediately prior to the occurrence of the Change in Control; or (ii) the common stock of the Company is no longer listed for trading on an established securities market and the Successor has not, effective as of the date the Change in Control occurs, offered to grant Conversion Options to the Executive in lieu of the options of the Executive to purchase common stock of the Company; or (iii) the common stock of the Company is no longer listed for trading on an established securities market and the Successor has offered to grant Conversion Options to the Executive effective as of the date the Change in Control occurs (in lieu of the Executive's options to purchase common stock of the Company) but the Executive has elected not to accept such grant of Conversion Options; then (iv) the the options shall be deemed to be exercised upon the date of Change in Control and the following “put” right shall be automatically exercised, without any further action required by the Executive. In consideration of the sale of the shares resulting from such exercise, or in a “net exercise” procedure, the Executive shall be paid, in one lump sum payment not later than 30 days following the occurrence of the Change in Control, the amount of the Built In Gain on the options to purchase common stock of the Company which were issued to the Executive and outstanding and unexercised (whether or not then vested and exercisable) on the date the Change in Control occurs and, thereafter, all such options shall be deemed to have been exercised and shall for all purposes be deemed and construed to be null and void; and (d) to the extent not otherwise provided above, any equity based incentive compensation award, including but not limited to options, stock appreciation rights, restricted stock units and performance stock units, shall vest and: (i) in the case of options and stock appreciation rights, become fully exercisable; and (ii) in the case of restricted stock units and performance stock units, subject to Section 17 below, shall be issued as shares of common stock of the Company or paid in cash or immediately available funds, whichever form of payment is contemplated by such award, in each case with the amount of the shares of common stock of the Company to be issued or the amount of cash or immediately available funds to be paid being determined, if applicable, at the targeted level of performance.