Common use of Effect of Change in Control Termination Clause in Contracts

Effect of Change in Control Termination. Notwithstanding any other provision of this Agreement to the contrary, if the Executive’s employment is terminated by: (i) Holding Co. other than due to the Executive’s death or disability or cause pursuant to paragraph 6.a., b. or c., or (ii) the Executive for good reason pursuant to paragraph 6.d., in either case upon or within six months following a “change in control” (as defined below), then, unless the parties otherwise mutually agree, in full satisfaction of Holding Co.’s obligations under this Agreement and in lieu of the provisions of paragraph 6.f., the following shall apply: (1) all stock options then held by the Executive which were not previously exercised shall become fully vested and exercisable; (2) any performance-based Bonus previously earned but unpaid shall become fully vested and shall be paid as soon as practicable following such termination; and (3) the Executive shall be entitled to receive a lump sum payment of an amount equal to three times the annual amount of the Executive’s Base Salary calculated at the rate in effect at the date of such termination. Notwithstanding the preceding, if the benefits and payments provided under this paragraph 6.f., either alone or together with other benefits and payments which the Executive has the right to receive either directly or indirectly from Holding Co. or any of its affiliates, would constitute an excess parachute payment (the “Excess Payment”) under Section 280G of the Code, the Executive hereby agrees that the benefits and payments provided under this paragraph 6.f. shall be reduced (but not below zero) by the amount necessary to prevent any such benefits and payments to the Executive from constituting an Excess Payment, as determined by Holding Co.’s independent auditor. For purposes of this Agreement, the following shall constitute a “change in control”: