Common use of Upon Termination by the Clause in Contracts

Upon Termination by the. Company Without Cause or by the Executive for Good Reason Following a Change of Control. (a) If, following a Change of Control, the Executive's employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall make the payments and provide to the Executive the same benefits set forth in Section 4.2 hereof. In addition, all unvested stock options owned by the Executive at the date of termination shall become fully vested at the termination date, and the Executive (or his estate or beneficiaries) shall have the right to exercise all vested, unexercised stock options outstanding at the termination date (including the accelerated options) in accordance with the terms (except the vesting terms with respect to the accelerated options) of the plans and agreements pursuant to which such options were issued. (b) Notwithstanding anything herein to the contrary, if the deductibility by the Company of any payments to be made to the Executive under this Agreement would be limited by Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or if an excise tax would be imposed with respect to such payments under Section 4999 of the Code, or any successor provisions thereto, the payments to be made to the Executive hereunder shall automatically be limited to an amount equal to the maximum amount that would otherwise be deductible by the Company under Code Section 280G and that will not result in an excise tax under Code Section 4999; provided, however, that if pursuant to a final determination of a court of competent jurisdiction or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, any portion of the aggregate payments made hereunder would not be deductible by the Company under Code Section 280G, the Executive agrees to pay to the Company, upon demand, an amount equal to the sum of (I) the portion of such amount that would not be deductible by reason of Code Section 280G, and (ii) interest on the amount set forth in clause (I) of this sentence at the Applicable Federal Rate (as defined in Section 1274(d) of the Code) from the date of receipt of such excess payment through the date of repayment. In applying the provisions of this Section, if, for any reason, an exemption from the application of the rules of Sections 280G and/or 4999 of the Code shall be available under the terms of said sections or under any applicable regulations or rulings thereunder, such exemption shall be fully applied. No payment under this Agreement or otherwise that is not a "parachute payment" under Section 280G of the Code shall be taken into account in applying the provisions of this Section. Calculations necessary to be made in applying the provisions of this Section shall be made by the public accounting firm serving as the Company's independent auditor immediately prior to a Change of Control, whose determination, made in good faith, shall be binding and conclusive upon both the Company and the Executive.

Upon Termination by the. Company Without Cause or by the Executive for Good Reason Following a Change of Control. (a) If, following a Change of Control, the Executive's employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall make the payments and provide to the Executive the same benefits set forth in Section 4.2 hereof. In addition, all unvested stock options owned by the Executive at the date of termination shall become fully vested at the termination date, and the Executive (or his estate or beneficiaries) shall have the right to exercise all vested, unexercised stock options outstanding at the termination date (including the accelerated options) in accordance with the terms (except the vesting terms with respect to the accelerated options) of the plans and agreements pursuant to which such options were issued. (b) Notwithstanding anything herein to the contrary, if the deductibility by the Company of any payments to be made to the Executive under this Agreement would be limited by Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or if an excise tax would be imposed with respect to such payments under Section 4999 of the Code, or any successor provisions thereto, the payments to be made to the Executive hereunder shall automatically be limited to an amount equal to the maximum amount that would otherwise be deductible by the Company under Code Section 280G and that will not result in an excise tax under Code Section 4999; provided, however, however that if pursuant to a final determination of a court of competent jurisdiction or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, any portion of the aggregate payments made hereunder would not be deductible by the Company under Code Section 280G, the Executive agrees to pay to the Company, upon demand, an amount equal to the sum of (I) the portion of such amount that would not be deductible by reason of Code Section 280G, and (ii) interest on the amount set forth in clause (Il) of this sentence at the Applicable Federal Rate (as defined in Section 1274(d) of the Code) from the date of receipt of such excess payment through the date of repayment. In applying the provisions of this Section, if, for any reason, an exemption from the application of the rules of Sections 280G and/or 4999 of the Code shall be available under the terms of said sections or under any applicable regulations or rulings thereunder, such exemption shall be fully applied. No payment under this Agreement or otherwise that is not a "parachute payment" under Section 280G of the Code shall be taken into account in applying the provisions of this Section. Calculations necessary to be made in applying the provisions of this Section shall be made by the public accounting firm serving as the Company's independent auditor immediately prior to a Change of Control, whose determination, made in good faith, shall be binding and conclusive upon both the Company and the Executive.

Upon Termination by the. Company Without Cause or by the Executive for Good Reason Following a Change of Control. (a) If, following a Change of Control, the Executive's employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall make the payments and provide to the Executive the same benefits set forth in Section 4.2 hereof. In addition, all unvested stock options owned by the Executive at the date of termination shall become fully vested at the termination date, and the Executive (or his estate or beneficiaries) shall have the right to exercise all vested, unexercised stock options outstanding at the termination date (including the accelerated options) in accordance with the terms (except the vesting terms with respect to the accelerated options) of the plans and agreements pursuant to which such options were issued. (b) Notwithstanding anything herein to the contrary, if the deductibility by the Company of any payments to be made to the Executive under this Agreement would be limited by Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or if an excise tax would be imposed with respect to such payments under Section 4999 of the Code, or any successor provisions thereto, the payments to be made to the Executive hereunder shall automatically be limited to an amount equal to the maximum amount that would otherwise be deductible by the Company under Code Section 280G and that will not result in an excise tax under Code Section 4999; provided, however, that if pursuant to a final determination of a court of competent jurisdiction or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, any portion of the aggregate payments made hereunder would not be deductible by the Company under Code Section 280G, the Executive agrees to pay to the Company, upon demand, an amount equal to the sum of (I) the portion of such amount that would not be deductible by reason of Code Section 280G, and (ii) interest on the amount set forth in clause (I) of this sentence at the Applicable Federal Rate (as defined in Section 1274(d) of the Code) from the date of receipt of such excess payment through the date of repayment. In applying the provisions of this Section, if, for any reason, an any exemption from the application applicable of the rules of Sections 280G and/or 4999 of the Code shall be available under the terms of said sections or under any applicable regulations or rulings thereunder, such exemption shall be fully applied. No payment under this Agreement or otherwise that is not a "parachute payment" under Section 280G of the Code shall be taken into account in applying the provisions of this Section. Calculations necessary to be made in applying the provisions of this Section shall be made by the public accounting firm serving as the Company's independent auditor immediately prior to a Change of Control, whose determination, made in good faith, shall be binding and conclusive upon both the Company and the Executive.

Upon Termination by the. Company Without Cause or by the Executive for Good Reason Following a Change of Control. (a) IfCOMPANY OR RESIGNATION BY THE EXECUTIVE, following a Change of Control, the FOLLOWING A CHANGE IN CONTROL OF THE COMPANY. If Executive's employment is terminated by the Company without Cause following a Change in Control of the Company, or resignation from the Company by the Executive within the first ninety (90) days following a Change in Control, the Company shall: (a) pay Executive the Accrued Base Salary; (b) pay Executive the Accrued Vacation Payment; (c) reimburse Executive the Accrued Reimbursable Expenses; (d) provide Executive the Accrued Benefits, together with any benefits required to be paid or provided under applicable law; (e) pay Executive any Incentive Bonus or other bonus with respect to a prior fiscal quarter which has accrued but has not been paid; (f) in the event of a Change in Control of the Company, Executive shall be entitled to receive payment representing 4 years of salary and bonus, calculated at the minimum level, with an agreed minimum payment of at least one million dollars ($1,000,000); (g) maintain in full force and effect, for Good ReasonExecutive's and his eligible beneficiaries continued benefit, all of the General Benefits, for a period of 24 months following the termination date of his employment under this Agreement, except to the extent that, as to any such General Benefit, Executive receives the substantial equivalent of such General Benefit as a result of his employment with another employer after his termination date. If Executive's continued participation in any General Benefit is not permitted under the terms of the plan, program or arrangement under which the General Benefit was provided to the Executive by the Company, the Company shall make arrange to provide Executive with the payments and provide General Benefit substantially similar to the General Benefit which Executive the same benefits set forth in Section 4.2 hereof. In additionwould have been entitled to receive under such plan, all unvested stock options owned by the program or arrangement; and (h) Executive at the date of termination shall become fully vested at the termination date, and the Executive (or his estate or beneficiaries) shall have the right to exercise all vested, unexercised stock options and warrants outstanding at the termination date (including the accelerated options) in accordance with the terms (except the vesting terms with respect to the accelerated options) of the plans and agreements pursuant to which such options and warrants were issued. (b) Notwithstanding anything herein to the contrary, if the deductibility by the Company of any payments to be made to the Executive under this Agreement would be limited by Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or if an excise tax would be imposed with respect to such payments under Section 4999 of the Code, or any successor provisions thereto, the payments to be made to the Executive hereunder shall automatically be limited to an amount equal to the maximum amount that would otherwise be deductible by the Company under Code Section 280G and that will not result in an excise tax under Code Section 4999; provided, however, that if pursuant to a final determination of a court of competent jurisdiction or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Agreement, any portion of the aggregate payments made hereunder would not be deductible by the Company under Code Section 280G, the Executive agrees to pay to the Company, upon demand, an amount equal to the sum of (I) the portion of such amount that would not be deductible by reason of Code Section 280G, and (ii) interest on the amount set forth in clause (I) of this sentence at the Applicable Federal Rate (as defined in Section 1274(d) of the Code) from the date of receipt of such excess payment through the date of repayment. In applying including the provisions of this Section, if, for any reason, an exemption from the application of the rules of Sections 280G and/or 4999 of the Code shall be available under the terms of said sections or under any applicable regulations or rulings thereunder, such exemption shall be fully applied. No payment under this Agreement or otherwise that is not a "parachute payment" under Section 280G of the Code shall be taken into account in applying the provisions of this Section. Calculations necessary to be made in applying the provisions of this Section shall be made by the public accounting firm serving as the Company's independent auditor immediately prior to a Change of Control, whose determination, made in good faith, shall be binding and conclusive upon both the Company and the Executive2.3(c).