Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1). b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 4 contracts
Sources: Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 6) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN then the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 3 contracts
Sources: Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 6) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN then the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested and not lapsed in accordance with their terms before or after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 2 contracts
Sources: Employment Agreement (Netcreations Inc), Employment Agreement (Netcreations Inc)
Change in Control of the Company. a. Unless otherwise provided in this AgreementIf (i) there is a sale, in acquisition, merger, or buyout of the event Company to an unaffiliated person, or any person that is not an “affiliate” (as such term is defined under the Securities Exchange Act of 1934) of the Company or any of its shareholders on the Agreement Date becomes the legal and beneficial owner of more than 50% of the Company’s common stock (a “Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of EmploymentControl”), and (ii) immediately prior to the first anniversary of the date of the or within 12 months after such Change in Control, either (xEmployee voluntarily terminates employment under Section 3(a)(iii) in circumstances where there has been a significant reduction in the Term authority, responsibilities, position or compensation of Employment is terminated by Employee or Employee has been required to move the location of his principal residence a distance of more than 35 miles, and the Company without Causehas failed to remedy such situation within 30 days after receipt of Employee’s written notice thereof, pursuant to Section 5.4 hereof or (y) then in lieu of the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensationseverance payments, if any, not yet paid otherwise payable to Employee under Section 3 of the Agreement, Employee will be entitled to the Executive for any Bonus Period prior to such termination, at such time as following severance:
(a) Two times Annual Base Salary payable in 24 monthly installments beginning on the Incentive Compensation otherwise would have been payable to first day following the Executive, six-month anniversary of Employee’s termination date; and (3) pay to the Executive in a lump sum payment an amount equal to the amount of any earned but unpaid bonus plus the Executive's Base Salary average of the previous 3 years bonus payment, inclusive of deferred amounts, if any (or if Employee has not been employed for three years, the six (6 months preceding such termination. Ifaverage of the bonus payments, inclusive of deferred amounts, during the Term of Employment, any Change in Control should occur and, prior ) which lump sum shall be paid to Employee on the first day following the six-month anniversary of Employee’s termination date. Notwithstanding the date foregoing, the Board may authorize that portion of the foregoing payments under this paragraph 4(a) that qualify as a 409A Exempt Payment (as defined in section 3(a)(ii)) to be paid in a single lump sum to Employee on the first payroll date following Employee’s termination date; and the remaining Annual Base Salary amounts to be paid to Employee in 24 equal installments beginning on the six-month anniversary of Employee’s termination date and ending on the second anniversary of Employee’s termination date, or until new employment begins, whichever occurs first; and the remaining bonus amount, if any, to be paid in a single lump sum on the six-month anniversary of Employee’s termination date. Salary continuation shall terminate if and when Employee begins new employment during the period of salary continuation.
(b) Health and welfare benefits shall be fully paid by the Company and run concurrently with salary continuation (but if such continued health benefits are taxable to Employee, then such continued health benefits shall continue only during the period during which Employee would have been eligible to continue such coverage under the Company’s health plan in accordance with section 4980B of the Code (“COBRA”), had Employee elected such coverage and paid the applicable premium), without any gap in coverage. Upon the occurrence of a Change in Control, either all stock options owned by Employee shall become fully vested and exercisable. As a condition to receiving the payments described in clause (xa) the Term of Employment is terminated by above, Employee shall be required to execute and deliver to the Company without Causea general release in customary and agreed form provided if Employee fails to sign the release, pursuant Employee shall not be entitled to any severance payments or benefits under this Section 4; and provided further if any severance payments or benefits are subject to Section 5.4 herof 409A of Code, Employee shall only be entitled to any such severance payments or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereofbenefits if such release has been executed, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity effective and the acquiror does not agree to assume applicable revocation period has expired no later than the obligations represented by the Stock Option rights date as of which such payment of the Executive on severance or prior benefits are otherwise to the closing commence and if such requirements are not satisfied, Employee shall not be entitled to any such portion of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1)severance payments or benefits thereafter.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six twelve (6 12) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company: (i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ; (2ii) the Company shall pay to Executive a lump-sum payment consisting of 2.5 times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination; (iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination; (iv) during the thirty-month period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of Section 4.1the Patient Protection and Affordable Care Act of 2010 (as amended from time to time).
b. For purposes , and in lieu of this Agreementproviding the subsidized premiums described above, the term "Change Company shall instead pay to Executive a fully taxable monthly cash payment in Control" an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such thirty-month period; provided, further, that such benefits provided during the thirty-month period shall mean:run concurrent with the health continuation coverage period mandated by Section 4980B of the Code;
Appears in 1 contract
Change in Control of the Company. a. Unless If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason during the eighteen (18) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under 6(e), or 6(f) hereof, the Executive shall be entitled to:
(i) The Accrued Obligations, payable as and when those amounts would have been payable had the Term of Employment not ended;
(ii) the Termination Year Bonus, payable as and when those amounts would have been payable had the Term of Employment not ended;
(iii) A lump-sum payment equal to the Severance Amount, payable on the thirtieth (30th) day immediately following the Termination Date;
(iv) A lump-sum payment equal to the Termination Payment, payable on the thirtieth (30th) day immediately following the Termination Date;
(v) Continuation of the health benefits provided to Executive and his covered dependents under the Company health plans as in this Agreementeffect from time to time after the date of such termination at the same cost applicable to active employees until the earlier of: (A) the eighteen (18) month anniversary of the Termination Date, in or (B) the event date Executive commences employment with any Person and, thus, is eligible for health insurance benefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA; and
(vi) All Equity Awards previously granted to the Executive that remain outstanding immediately prior to the effective date of a Change in Control shall become fully vested and exercisable upon the occurrence of such Change in Control and shall remain exercisable for a period of two (as defined 2) years thereafter regardless of whether Executive continues to be employed by the Company. If, upon the Change in paragraph (b) of this Section 5.6) Control, the Company is not a publicly traded corporation, the stock options shall be cancelled and, in exchange, the Company shall occur during the Term of Employment, and prior pay to the first anniversary Executive, in full settlement of all rights with respect to the stock options, an aggregate amount in cash equal to the fair market value of a share of the Company’s Common Stock on the date the Change in Control minus the per share exercise price for the stock options, times the number of shares to which the stock options have not been exercised at the time of the Change in Control. Such cash payment shall be made within thirty (30) days of the effective date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) In the event that that: (i) a Change in Control (as defined in paragraph part (b) of this Section 5.6Subsection 7.6) in the Company shall occur during the Term of Employment, Term; and (ii) prior to the first anniversary of twelve (12) months after the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Cause, other than pursuant to Section 5.4 hereof any of Subsections 7.1, 7.2, or 7.3, or (y) the Executive terminates his employment under the Term of Employment Agreement for Good Reason pursuant to Section 5.5(c) Subsection 7.5 hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise same amount of monies that would have been payable to by the Executive, and (3) pay Company to the Executive in a lump sum payment an amount equal to the amount under Subsection 7.4 of this Agreement if the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is ’s employment had been terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (under this Agreement other than for the Stock Option Tax Liability Payment and reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions Company’s policy on reimbursements of business expenses. Notwithstanding anything to the contrary, if the amounts payable to Executive hereunder, either alone or together with other “parachute payments” (as defined in Section 4.1280G(b)(2)(A) of the Internal Revenue Code of 1986, as amended (the Code”)) (such amounts collectively are referred to herein as the “Severance Payment”), would constitute an “excess parachute payment” (as defined in Code Section 280G(b)(1)), then the Severance Payment shall be reduced (subject to the written consent of the Executive), to the minimum extent necessary so that no portion of the Severance Payment will be subject to the excise tax imposed by Code Section 4999 (the “Reduced Severance Payment”); provided however, that no reduction to the Severance Payment shall occur if the Severance Payment, less any excise tax which would be imposed on such payment pursuant to Code Section 4999, would be greater than the Reduced Severance Payment. The determination of any reduction in the Severance Payment pursuant to the foregoing provision shall be made by independent counsel to the Company in consultation with the independent certified public accountants and/or auditors of the Company.
b. (b) For purposes of this Agreement, the term "“Change in Control" ” shall mean:
Appears in 1 contract
Sources: Employment Agreement (Summit Financial Services Group Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(e) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(g) hereof, in either case during the eighteen (18) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 2.5 times the sum of (x) his then current base salary and (a) the greater of (x) the average aggregate bonus he had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus he had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
10. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Sources: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof Cause or (y) by the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of twelve (12) month period immediately following the Change in Control, either then in lieu of any amounts otherwise payable under Sections 6(e) or 6(f) hereof, the Executive shall be entitled to:
(xi) The Accrued Obligations, payable as and when those amounts would have been payable had the Term of Employment is terminated by the Company without Causenot ended;
(ii) The Termination Year Bonus, pursuant to Section 5.4 herof or (y) the Executive terminates payable as and when those amounts would have been payable had the Term of Employment for Good Reason pursuant not ended;
(iii) A lump-sum payment equal to Section 5.5(cthe Severance Amount, payable on the 30th day immediately following the Termination Date; and
(iv) hereofthe Company shall reimburse, on a monthly basis, Executive’s COBRA premium under the Company’s major medical group health and dental plan (including the costs of the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if ’s premium required to maintain coverage for his dependents) for a Change in Control transaction shall occur period of 18 months after such termination or the expiration of the period in which the Company COBRA coverage must be provided, whichever is not the surviving entity less; and
(v) All Equity Awards and the acquiror does not agree or stock options previously granted to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable that remain outstanding immediately prior to the consummation effective date of Termination shall become fully vested and exercisable upon the closing occurrence of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms Termination and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be remain exercisable for a period of three months from two (2) years thereafter. If, upon the date Termination Date, the Company is not a publicly traded corporation, the stock options shall be cancelled and, in exchange, the Company shall pay to the Executive, in full settlement of any termination all rights with respect to the stock options, an aggregate amount in cash equal to the fair market value of a share of the Executive's employment by Company’s Common Stock on the Company following such Change in ControlTermination Date minus the per share exercise price for the stock options, times the number of shares to which the stock options have not been exercised at the time of the Termination. The Company Such cash payment shall have no further liability hereunder be made within thirty (other than for reimbursement for reasonable business expenses incurred prior to 30) days of the date of termination, subject, however, to the provisions of Section 4.1)Termination Date.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof Cause or (y) by the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of eighteen (18) month period immediately following the Change in Control, either then in lieu of any amounts otherwise payable under Sections 6(e) or 6(f) hereof, the Executive shall be entitled to:
(xi) The Accrued Obligations, payable as and when those amounts would have been payable had the Term of Employment is terminated by the Company without Causenot ended;
(ii) The Termination Year Bonus, pursuant to Section 5.4 herof or (y) the Executive terminates payable as and when those amounts would have been payable had the Term of Employment for Good Reason pursuant not ended;
(iii) A lump-sum payment equal to Section 5.5(cthe Severance Amount, payable on the 30th day immediately following the Termination Date; and
(iv) hereofthe Company shall reimburse, on a monthly basis, Executive’s COBRA premium under the Company’s major medical group health and dental plan (including the costs of the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if ’s premium required to maintain coverage for his dependents) for a Change in Control transaction shall occur period of 18 months after such termination or the expiration of the period in which the Company COBRA coverage must be provided, whichever is not the surviving entity less; and
(v) All Equity Awards and the acquiror does not agree or stock options previously granted to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable that remain outstanding immediately prior to the consummation effective date of Termination shall become fully vested and exercisable upon the closing occurrence of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms Termination and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be remain exercisable for a period of three months from two (2) years thereafter. If, upon the date Termination Date, the Company is not a publicly traded corporation, the stock options shall be cancelled and, in exchange, the Company shall pay to the Executive, in full settlement of any termination all rights with respect to the stock options, an aggregate amount in cash equal to the fair market value of a share of the Executive's employment by Company’s Common Stock on the Company following such Change in ControlTermination Date minus the per share exercise price for the stock options, times the number of shares to which the stock options have not been exercised at the time of the Termination. The Company Such cash payment shall have no further liability hereunder be made within thirty (other than for reimbursement for reasonable business expenses incurred prior to 30) days of the date of termination, subject, however, to the provisions of Section 4.1)Termination Date.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company:
(i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ;
(2ii) the Company shall pay to Executive a lump-sum payment consisting of three times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination;
(iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination;
(iv) during the three year period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of the Patient Protection and Affordable Care Act of 2010 (as amended from time to time), and in lieu of providing the subsidized premiums described above, the Company shall instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such three-year period; provided, further, that such benefits provided during the three-year period shall run concurrent with the health continuation coverage period mandated by Section 4.1)4980B of the Code;
(v) the Company will cause all unvested options and restricted stock awards, previously granted by the Company to Executive, to vest on the 60th day following Executive’s date of termination;
(vi) Executive shall be entitled to receive a number of shares in an amount equal to the target amount of any performance units, previously granted to Executive, on the 60th day following Executive’s date of termination; and
(vii) the Company shall pay Executive the Benefit Obligation at the times specified in and in accordance with the terms of the applicable employee benefit plans and compensation arrangements. Notwithstanding the foregoing, neither Executive, nor his estate, shall be permitted to specify the taxable year in which a payment described in this Section 7(a) shall be paid.
b. (b) For purposes of this Agreement, the term "a “Change in Control" Control of the Company” shall meanmean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, including voluntary termination by the Executive for Good Reason (as defined in Section 12.5 (iii)), in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, becoming Completely Disabled (as defined in Section 4.2) or voluntary resignation without Good Reason or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed calendar year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the calendar year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed calendar year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and (iii) the bonus required by Section 3.3 (b) payable on termination; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination. Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section 4.112.3, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
b. 12.4 The Company also shall pay to the Executive all legal and accounting fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Change of Control Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within fifteen (15) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
12.5 For purposes of this Agreement, the term following terms shall have the meanings indicated below:
(i) A "Change in Control" shall meanbe deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:
(I) any "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act, other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or any affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the Company, a subsidiary of the Company or any Company Executive benefit plan (including its trustee), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly of securities of the Company representing 50.01 percent or more of the combined voting power of the Company's then outstanding securities;
(II) during any period of two consecutive years (not including any period prior to the execution of this Agreement) the individuals who, at the beginning of such period, constitute the Board cease, for any reason other than death, to constitute at least a majority thereof, unless each director who was not a director at the beginning of such period was elected by, or on the recommendation of, at least two-thirds of the directors at the beginning of such period; or
(III) the occurrence of a transaction requiring stockholder approval for the acquisition of the Company by an entity other than the Company or a subsidiary of the Company through purchase of assets, or by merger, or otherwise.
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If Executive’s employment is terminated either by the event that a Company without Cause or by Executive for Good Reason during the two (2) year period immediately following the Change in Control (a “Qualifying Termination”), then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, Executive shall be entitled to the following, subject to Executive’s execution and non-revocation of the General Release referred to in Section 2.4(j) below and subject to Executive’s compliance with Sections 2.5, 2.6 and 2.7 below:
(i) all previously earned and accrued but unpaid Base Salary and Annual Bonus up to the Termination Date, payable as defined and when such amounts would be payable had Executive’s employment not terminated and Executive shall be entitled to vested benefits and other amounts in paragraph accordance with the terms of the applicable plan or program;
(bii) an amount equal to two (2) times the sum of (A) Executive’s then Base Salary under Section 2.3(a) immediately prior to the Termination Date, and (B) Executive’s Target Bonus Amount as in effect under Section 2.3(b) for the year in which the Termination Date occurs, in each case assuming for this Section 5.6purpose attainment of 100% of any applicable target (collectively, the “Compensation Incentive Amount”), payable in a lump sum cash payment on the sixty-first (61st) day after the Termination Date;
(iii) Benefit Continuation for eighteen (18) months, at the Company’s expense; provided, however, that if the Company’s providing Benefit Continuation would violate the non-discrimination rules applicable to non-grandfathered plans, or would result in the imposition of penalties under applicable rules, the Company shall occur during have the Term right to amend this Section 2.4(h)(iii) in a manner it determines, in its sole discretion, to comply with the PPACA;
(iv) to the extent not provided in an applicable LTI Award, full vesting and payment of Employmentall outstanding LTI Awards subject solely to time-based vesting and full vesting and payment of all LTI awards subject to performance-vesting at the greater of target or actual performance;
(v) reasonable legal fees and related expenses incurred by Executive: (A) as a result of the Qualifying Termination; (B) in seeking to obtain or enforce any right or benefit provided by this Agreement (including all fees and expenses and/or arbitration administrative costs, if any, incurred in contesting or disputing any such termination or incurred by the Executive in seeking advice in connection therewith); and/or (C) in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of Section 4999 of the Code, and any payment or benefit provided hereunder; and
(vi) the Company shall make available to Executive, at the Company’s expense, outplacement counseling. Executive may select the organization that will provide the outplacement counseling; provided, however, that the Company’s obligation to provide such benefits shall be limited to reasonable expenses. This counseling must be used, if at all, no later than the end of the first calendar year after the year of the Termination Date. Notwithstanding the foregoing, in consideration of the covenants under this Agreement and as a condition precedent to receiving any payments under this Section 2.4(h), Executive agrees to the execution and non-revocation of the General Release, as in effect immediately prior to the first anniversary a Change in Control, within sixty (60) days of the date of the Qualifying Termination or Change in Control, either whichever applicable. If the sixty (x60) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, day period spans over two (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employmentcalendar years, any Change payments must be made in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1)later taxable year.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 6) months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN then the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock Common Stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the unexercised options which shall have vested before or after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, disability (as defined in Section 4.2) or voluntary resignation or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed fiscal year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), and (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the fiscal year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed fiscal year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section 4.112.3, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
b. 12.4 The Company also shall pay to the Executive all legal and accounting fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Change of Control Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within fifteen (15) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
12.5 For purposes of this Agreement, the term following terms shall have the meanings indicated below:
(i) A "Change in Control" shall meanbe deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:
(I) any persons becomes the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such person any securities acquired directly from the Company or its affiliates, as such term is defined in the rules and regulations of the Securities and Exchange Commission) representing 50.1% or more of the combined voting power of the Company's then outstanding securities; or
(II) during any period of two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (I), (III) or (IV) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(III) the shareholders of the Company approve a merger or statutory share exchange of the Company with any other corporation, other than (i) a merger or statutory share exchange which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or statutory share exchange, or (ii) a merger or statutory share exchange effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than 25% of the combined voting power of the Company's then outstanding securities; or
(IV) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Change in Control of the Company. a. Unless 11.1 Subject to Section 11.2 hereof, the Company shall pay the Executive the payments described in this Section 11.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, disability (as defined in Section 4.2) or voluntary resignation or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based which severance payment shall be paid in twenty-four (24) equal payments on the first (1st) day of each month beginning on the first (1st) day of the month following termination;
(b) The Company shall pay to the Executive (i) a lump sum amount, in cash, equal to the sum of any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed fiscal year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), and (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the fiscal year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed fiscal year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days which shall be paid in twelve (12) equal monthly payments on the first (1st) day of each month beginning on the first (1st) day of the month following termination; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 11.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 11.1.(c) shall result in a decrease, pursuant to Section 11.2, in the Change of Control Payments and these Section 11.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 11.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
11.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject, however, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the provisions Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 4.111.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
11.3 The payments and other items provided for in Section 11.1 hereof shall be made as set forth therein or if not set forth therein not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided,
1. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section 11.3, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
b. 11.4 The Company also shall pay to the Executive all legal and accounting fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Change of Control Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within fifteen (15) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
11.5 For purposes of this Agreement, the term following terms shall have the meanings indicated below:
(i) A "Change in Control" shall meanbe deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:
(I) any persons becomes the beneficial owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such person any securities acquired directly from the Company or its affiliates, as such term is defined in the rules and regulations of the Securities and Exchange Commission) representing 50.1% or more of the combined voting power of the Company's then outstanding securities; or
(II) during any period of two consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (I), (III) or (IV) of this paragraph) whose election by the Board or nomination for election by the Company's stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(III) the shareholders of the Company approve a merger or statutory share exchange of the Company with any other corporation, other than (i) a merger or statutory share exchange which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 75% of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or statutory share exchange, or (ii) a merger or statutory share exchange effected to implement a recapitalization of the Company (or similar transaction) in which no person acquires more than 25% of the combined voting power of the Company's then outstanding securities; or
(IV) the shareholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all the Company's assets.
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company:
(i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ;
(2ii) the Company shall pay to Executive a lump-sum payment consisting of 2.5 times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination;
(iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination;
(iv) during the thirty-month period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of the Patient Protection and Affordable Care Act of 2010 (as amended from time to time), and in lieu of providing the subsidized premiums described above, the Company shall instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such thirty-month period; provided, further, that such benefits provided during the thirty-month period shall run concurrent with the health continuation coverage period mandated by Section 4.1)4980B of the Code;
(v) the Company will cause all unvested options and restricted stock awards, previously granted by the Company to Executive, to vest on the 60th day following Executive’s date of termination;
(vi) Executive shall be entitled to receive a number of shares in an amount equal to the target amount of any performance units, previously granted to Executive, on the 60th day following Executive’s date of termination; and
(vii) the Company shall pay Executive the Benefit Obligation at the times specified in and in accordance with the terms of the applicable employee benefit plans and compensation arrangements. Notwithstanding the foregoing, neither Executive, nor his estate, shall be permitted to specify the taxable year in which a payment described in this Section 7(a) shall be paid.
b. (b) For purposes of this Agreement, the term "a “Change in Control" Control of the Company” shall meanmean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof Cause or (y) by the Executive terminates for Good Reason during the two (2) year period immediately following a Change in Control, then in lieu of any amounts otherwise payable under Sections 6(e) or 6(f) hereof, the Executive shall be entitled to:
(i) The Accrued Obligations through the Termination Date, payable as and when those amounts would have been payable had the Term of Employment for Good Reason pursuant to Section 5.5(cnot ended;
(ii) hereofThe Termination Year Bonus, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time payable as the Incentive Compensation otherwise and when those amounts would have been payable had the Term of Employment not ended;
(iii) A lump-sum payment equal to the Executive, and three (3) pay times the sum of (A) the Executive’s annual Base Salary as in effect immediately prior to the Executive Termination Date and (B) the Executive’s Target Bonus for the Bonus Period in which the Termination Date occurs, less applicable withholdings and deductions; provided, however, such payment may only be made in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms is also a “change in control event” as defined in Section 409A of the Code, and conditions if the Change in Control is not also a “change in control event” as shall defined in Section 409A of the Code, the severance will be reasonably satisfactory to paid in installments in the Companysame manner as severance triggered before a Change in Control;
(iv) Vesting, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation such Termination Date, of any LTI Awards that have not previously vested; and
(v) Continuation of the closing health benefits provided to Executive and his covered dependents, pursuant to COBRA and any applicable state or local equivalents, under the Company health plans as in effect from time to time after the Termination Date, at the Company’s sole cost, until the earlier of: (A) the third (3rd) anniversary of the Termination Date, or (B) the date the Executive commences employment with any person or entity and, thus, is eligible for health insurance benefits; provided, however, that as a condition of continuation of such Change in Control transaction so as to permit benefits, the Company may require the Executive and his dependent to dispose elect to continue their health insurance pursuant to COBRA. Notwithstanding the foregoing, in the event that the Executive is covered under a non-Company health plan as of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of Termination Date, then the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from reimburse the date of any termination Executive as provided in Section 5(b)(i) until the last day on which the Executive and his covered dependents would had been entitled to COBRA coverage if the Executive had participated in the Company’s health plans as of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1)Termination Date.
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(d) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(f) hereof, in either case during the eighteen (18) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 2.0 times the sum of (x) her then current base salary and (a) the greater of (x) the average aggregate bonus she had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus she had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
9. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Sources: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless otherwise provided in this AgreementSection 6.7 hereof, in the event that a Change in Control (as defined in paragraph (bc) of this Section 5.66.6) in the Company shall occur during the Term of Employment, and prior to if within one (1) year following a Change of Control, (i) the first anniversary Executive’s position (including status, offices, titles and reporting requirements), authority, duties and responsibilities are not at least commensurate in all material respects with the most significant of those held, exercised and assigned at the date of time preceding the Change in Control, either or (xii) the Term of Employment Executive is terminated by the Company Terminated without Cause, Cause pursuant to Section 5.4 6.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason not pursuant to Section 5.5(c6.6(b) hereof), then in either event, the Executive may elect to terminate this Agreement and a “Change of Control Termination” shall be deemed to have occurred. In the event of this Change of Control Termination, the Company shall (1i) pay to the Executive any accrued and unpaid Base Salary and Bonus Payment, through the effective date of terminationtermination specified in such notice, and (2ii) continue to pay to the Executive Executive’s Base Salary for a period of eighteen (18) months following the Incentive Compensationtermination of the Executive’s employment with the Company, if any, not yet paid to in the Executive for any Bonus Period prior to such termination, manner and at such time times as the Incentive Compensation Base Salary otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.15.1, and payment of compensation for accrued and unused vacation days).
b. If a Change in Control (as defined in paragraph (c) of this Section 6.6) in the Company occurs prior to March 27, 2004, the one-year anniversary of the transaction with Welsh, Carson, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, and (i) the Executive’s position (including status, offices, titles and reporting requirements), authority, duties and responsibilities are not at least commensurate in all material respects with his Executive Vice President and President position, or (ii) the Executive is Terminated without Cause pursuant to Section 6.4 hereof (not pursuant to Section 6.6(a) hereof), then in either event, the Executive may elect to terminate this Agreement and a “Change in Control Termination” shall be deemed to have occurred. In the event of this Change in Control Termination, the Company shall (1) pay to the Executive any accrued and unpaid Base Salary and Bonus Payment, through the effective date of the termination, and (2) pay to the Executive, within 30 days of the termination of his employment hereunder, a lump sum payment equal to one and one half times the Executive’s annual Base Salary. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 5.1, and payment of compensation for accrued and unused vacation days).
c. For purposes of this Agreement, the term "“Change in Control" ” shall mean:have the meaning ascribed to such term in the Executive’s Time-Based Stock Option Agreement with AmeriPath Holdings, Inc.
Appears in 1 contract
Sources: Employment Agreement (Ameripath Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in In the event that (i) a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and (ii) prior to the first anniversary earlier of the Expiration Date and one year after the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1i) continue to pay to the Executive any unpaid Executive's Base Salary through for a period (the effective date "Continuation Period") which is 180 days following the termination of terminationthe Executive's employment with the Company, (2) pay to in the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, manner and at such time as the Incentive Compensation Base Salary otherwise would have been payable to the Executive, (ii) continue to calculate the Incentive Compensation and continue to provide the Executive with the Benefits through the end of the Continuation Period in the manner and at such times as the Incentive Compensation or Benefits otherwise would have been payable or provided to the Executive, (3iii) pay to the Executive the accrued but unpaid Incentive Compensation, if any, for any Bonus Period ending on or before the end of the Continuation Period calculated in accordance with Section 3.3(g) hereof, and (iv) pay to the Executive a lump sum payment an amount equal to the amount greater of (x) the sum of the Executive's Base Salary for the six year then in effect plus the Incentive Compensation for the preceding fiscal year or (6 months preceding such termination. If, during y) the Term of Employment, any Change in Control should occur and, prior to the first anniversary sum of the date Executive's Base Salary for any remaining portion of the Initial Term plus the Incentive Compensation for the preceding fiscal year, within fifteen (15) days of the end of the Continuation Period. Further, upon the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according immediately vest. The Stock Options which become vested pursuant to this Section 5.6 may be exercised until the applicable vesting schedule, earlier of the options which shall have vested after any such Change in Control shall continue to be exercisable for a (x) the three-month period of three months from immediately following the date of any such termination of employment and (y) the Executive's employment by expiration of the Company following such Change term specified in Controlthe Stock Option. Any unvested portion of the restricted stock granted to the Executive pursuant to Sections 3.1, 3.3(c), 3.3(d) and 3.3(e) shall immediately vest. The Company shall have no further liability hereunder (other than for (1) reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1, and (2) payment of compensation for unused vacation days that have accumulated during the calendar year in which such termination occurs).
b. For purposes of this Agreement, the term "Change in Control" shall mean:: (i) Approval by the shareholders of the Company of (x) a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the shareholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 30% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company's then outstanding voting securities, in substantially the same proportions as their ownership immediately prior to such reorganization, merger, consolidation or other transaction, or (y) a liquidation or dissolution of the Company or (z) the sale of all or substantially all of the assets of the Company (unless such reorganization, merger, consolidation or other corporate transaction, liquidation, dissolution or sale is subsequently abandoned); (ii) Individuals who, as of the Commencement Date of this Agreement, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority of the Board, provided (i) that any person becoming a director subsequent to the Commencement Date of this Agreement whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board (other than an election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the Directors of the Company, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act) or (ii) any individual appointed to the Board by the Incumbent Board shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or (iii) the acquisition (other than from the Company) by any person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 30% of either the then outstanding shares of the Company's Common Stock or the combined voting power of the Company's then outstanding voting securities entitled to vote generally in the election of directors (hereinafter referred to as the ownership of a "Controlling Interest") excluding, for this purpose, any acquisitions by (1) the Company or its Subsidiaries, or (2) any person, entity or "group" that as of the Commencement Date of this Agreement owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or any affiliate of such person, entity or "group."
Appears in 1 contract
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, disability (as defined in Section 4.2) or voluntary resignation or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed calendar year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), and (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the calendar year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed calendar year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination (without giving effect to any reduction in such benefits subsequent to a Change in Control which reduction constitutes Good Reason). Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of Section 4.1).
b. For purposes the minimum amount of this Agreement, such payments to which the term "Change Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Control" shall mean:section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of
Appears in 1 contract
Change in Control of the Company. a. Unless (a) If a Change in Control of the Company occurs prior to the end of the Employment Period and (a) the Executive’s employment is terminated by the Company for reasons other than death, Disability or Cause or (b) the Executive terminates employment with the Company for Good Reason, then, the Company, or any successor thereto, will pay to the Executive (i) a cash payment equal to any accrued but unpaid salary and accrued but unused vacation due to the Executive’s termination, (ii) reimbursement in cash of expenses incurred but unpaid prior to the Executive’s termination, (iii) a cash payment equal to 300% of salary, payable in equal installments over a twelve (12)-month period in accordance with the Company’s usual and customary payroll practices, (iv) a cash payment equal to 300% of the Executive’s average Annual Bonus for the three (3) years immediately preceding the year of the termination payable in equal installments over a twelve (12)-month period in accordance with the Company’s usual and customary payroll practices, (v) vesting of any restricted stock, stock option or other equity awards the Executive then continues to hold, to the extent unvested, including any performance awards at target, (vi) for a period of one (1) year after termination, such health benefits under the Company’s health plans and programs applicable to senior executives of the Company generally as the Executive would have received and at such costs to the Executive as would have applied in the absence of such termination, provided that the Company shall in no event be required to provide any benefits otherwise provided required herein after such time as the Executive becomes entitled to receive benefits from another employer or recipient of the Executive’s services and (vii) a prorated Annual Bonus at “target” level for the year in which the Executive’s employment is terminated payable in a single lump sum. Subject to Section 19(d) hereof, the payments under clauses (iii), (iv) and (vii) hereof shall be paid or commence on the 60th day following the date of termination of employment subject to the execution, delivery and nonrevocation of a release.
(b) Notwithstanding any other provision of this Agreement, in the event that the Company or the Executive determines, based upon the advice of its tax advisors, (i) that part or all of the consideration, compensation or benefits to be paid to the Executive under Section 7(a) or any other provision hereof constitute payments “contingent on a Change change in Control ownership or control” of the Company within the meaning of the Treasury Regulations under Section 280G(b)(2) (or a successor provision) of the Internal Revenue Code of 1986, as amended (“parachute payments”), and (ii) that the aggregate present value of such parachute payments, singularly or together with the aggregate present value of any consideration, compensation or benefits to be paid to the Executive under any other plan, arrangement or agreement which constitute parachute payments (collectively, the “Parachute Amount”), exceeds 2.99 times the Executive’s “base amount” as defined in paragraph (bSection 280G(b)(3) of this Section 5.6) in the Code (the “Executive Base Amount”), then the amounts constituting parachute payments which would otherwise be payable to or for the benefit of the Executive shall be reduced to the extent necessary so that the Parachute Amount is equal to 2.99 times the Executive Base Amount (the “Reduced Amount”); provided, however, that the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, Parachute Amount without reduction if any, not yet paid it is determined that payment of the Parachute Amount would generate more after−tax income to the Executive for any Bonus Period prior to such termination, at such time as than the Incentive Compensation Reduced Amount. In the event of a reduction of the payments that would otherwise would have been payable be paid to the Executive, then the Company may elect which and (3) pay to how much of any particular entitlement shall be eliminated or reduced and shall notify the Executive in a lump sum payment an amount equal to promptly of such election; provided, however that the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options aggregate reduction shall be vested and become immediately exercisable. In addition, if a Change no more than as set forth in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights preceding sentence of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of this Section 4.17(b).
b. (c) For purposes of this Agreement, the term "a “Change in Control" ” shall meanmean the occurrence of any of the following events at any time during the Employment Period:
Appears in 1 contract
Change in Control of the Company. a. Unless 12.1 Subject to Section 12.2 hereof, the Company shall pay the Executive the payments described in this Section 12.1 (the "Change of Control Payments") upon the termination of the Executive's employment following a Change in Control and during the term of this Agreement, including voluntary termination by the Executive for Good Reason (as defined in Section 12.5 (iii)), in addition to any of the then unpaid compensation and benefits previously required to be paid to Executive through the date of termination, unless such termination is (i) by the Company for cause, or (ii) by reason of death, becoming Completely Disabled (as defined in Section 4.2) or voluntary resignation without Good Reason or retirement of Executive. The Change of Control Payments shall be as follows:
(a) In lieu of any further salary payments to the Executive for periods subsequent to the date of termination and in lieu of any severance benefit otherwise payable to the Executive, the Company shall pay to the Executive a lump sum severance payment, in cash, equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the notice of termination is based;
(b) The Company shall pay to the Executive a lump sum amount, in cash, equal to the sum of (i) any annual and quarterly performance or discretionary bonuses which have been allocated or awarded to the Executive for a completed calendar year preceding the date of termination but has not yet been paid (pursuant to Section 3.3 hereof or otherwise), (ii) a pro rata portion of any annual and quarterly performance or discretionary bonuses for the calendar year in which the date of termination occurs, determined by multiplying the Executive's bonuses awarded or paid for the most recently completed calendar year by a fraction, the numerator of which shall be the number of full days the Executive was employed by the Company during the fiscal year in which the Executive's date of termination occurred and the denominator of which shall be three hundred and sixty-five (365) days; and
(c) For a twelve (12) month period after the date of termination, the Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Executive is receiving immediately prior to the notice of termination. Benefits otherwise receivable by the Executive pursuant to this Section 12.1(c) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the twelve (12) month period following the Executive's termination of employment (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). If the benefits provided to the Executive under this Section 12.1.(c) shall result in a decrease, pursuant to Section 12.2, in the Change of Control Payments and these Section 12.1(c) benefits are thereafter reduced pursuant to the immediately preceding sentence because of the receipt of comparable benefits, the Company shall, at the time of such reduction, pay to the Executive the lesser of (a) the amount of the decrease made in the Change of Control Payments pursuant to Section 12.2, or (b) the maximum amount which can be paid to the Executive without being, or causing any other payment to be, nondeductible by the Company by reason of section 280G of the Code.
12.2 Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with and contingent on a Change in Control (as defined in paragraph (b) of this Section 5.6) in or the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person) (all such payments and benefits, including the Change of Control Payments, being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Company following Company, an affiliate or person making such payment or providing such benefit, as a result of section 280G of the Code, then, to the extent necessary to make the remaining portion of the Total Payments deductible (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Change of Control Payments and/or other cash payments provided for hereunder, in Control. The Company each case, to the extent still unpaid, shall first be reduced (if necessary, to zero), and (B) all other noncash Change of Control Payments and/or other noncash benefits provided for hereunder, in each case, to the extent still unfurnished, shall next be reduced (if necessary, to zero), and (C) the Executive shall have no further liability right to receive hereunder, and neither the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person shall be obligated to make, pay or furnish to the Executive hereunder any payment or benefit in excess of those payments or benefits provided hereunder as reduced, if applicable, pursuant to clause (other than for reimbursement for reasonable business expenses incurred A) or clause (B) above. For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of terminationtermination shall be taken into account, subject(ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Change of Control Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any noncash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding that, notwithstanding the good faith of the Executive and the Company in applying the terms of this Section 12.2, the aggregate "parachute payments" paid to or for the Executive's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of section 280G of the Code, then the Executive shall have an obligation to pay the Company upon demand an amount equal to the sum of (i) the excess of the aggregate "parachute payments" paid to or for the Executive's benefit over the aggregate "parachute payments" that could have been paid to or for the Executive's benefit without any portion of such "parachute payments" not being deductible by reason of section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in section 1274(b)(2)(B) of the Code from the date of the Executive's receipt of such excess until the date of such payment.
12.3 The payments and other items provided for in Section 12.1 (other than Section 12.1(c)) hereof shall be made not later than the fifteenth (15th) day following the date of termination or the date of exercise by Executive of any of Executive's rights hereunder; provided, however, that if the amounts of such payments, and the limitation on such payments set forth in Section 12.2 hereof, cannot be finally determined on or before such day, the Company shall pay to the provisions Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the date of termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section 4.112.3, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).
b. 12.4 The Company also shall pay to the Executive all legal and accounting fees and expenses incurred by the Executive as a result of a termination which entitles the Executive to the Change of Control Payments (including all such fees and expenses, if any, incurred in disputing any such termination or in seeking in good faith to obtain or enforce any benefit or right provided by this Agreement or in connection with any tax audit or proceeding to the extent attributable to the application of section 4999 of the Code to any payment or benefit provided hereunder). Such payments shall be made within fifteen (15) business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require.
12.5 For purposes of this Agreement, the term following terms shall have the meanings indicated below:
(i) A "Change in Control" shall meanbe deemed to have occurred if the conditions set forth in any one of the following paragraphs shall have been satisfied:
(I) any "person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act, other than ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or any affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the Company, a subsidiary of the Company or any Company Executive benefit plan (including its trustee), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly of securities of the Company representing 50.01 percent or more of the combined voting power of the Company's then outstanding securities;
(II) during any period of two consecutive years (not including any period prior to the execution of this Agreement) the individuals who, at the beginning of such period, constitute the Board cease, for any reason other than death, to constitute at least a majority thereof, unless each director who was not a director at the beginning of such period was elected by, or on the recommendation of, at least two-thirds of the directors at the beginning of such period; or
(III) the occurrence of a transaction requiring stockholder approval for the acquisition of the Company by an entity other than the Company or a subsidiary of the Company through purchase of assets, or by merger, or otherwise.
Appears in 1 contract
Change in Control of the Company. a. Unless If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason during the eighteen (18) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under 6(e), or 6(f) hereof, the Executive shall be entitled to:
(i) The Accrued Obligations, payable as and when those amounts would have been payable had the Term of Employment not ended;
(ii) the Termination Year Bonus, payable as and when those amounts would have been payable had the Term of Employment not ended;
(iii) A lump-sum payment equal to the Severance Amount, payable on the thirtieth (30th) day immediately following the Termination Date;
(iv) A lump-sum payment equal to the Termination Payment, payable on the thirtieth (30th) day immediately following the Termination Date;
(v) Continuation of the health benefits provided to Executive and his covered dependants under the Company health plans as in this Agreementeffect from time to time after the date of such termination at the same cost applicable to active employees until the earlier of: (A) the eighteen (18) month anniversary of the Termination Date, in or (B) the event date Executive commences employment with any Person and, thus, is eligible for health insurance benefits; provided, however, that as a condition of continuation of such benefits, the Company may require the Executive to elect to continue his health insurance pursuant to COBRA; and
(vi) All stock options previously granted to the Executive that remain outstanding immediately prior to the effective date of a Change in Control shall become fully vested and exercisable upon the occurrence of such Change in Control and shall remain exercisable for a period of two (as defined 2) years thereafter regardless of whether Executive continues to be employed by the Company. If, upon the Change in paragraph (b) of this Section 5.6) Control, the Company is not a publicly traded corporation, the stock options shall be cancelled and, in exchange, the Company shall occur during the Term of Employment, and prior pay to the first anniversary Executive, in full settlement of all rights with respect to the stock options, an aggregate amount in cash equal to the fair market value of a share of the Company’s Common Stock on the date the Change in Control minus the per share exercise price for the stock options, times the number of shares to which the stock options have not been exercised at the time of the Change in Control. Such cash payment shall be made within thirty (30) days of the effective date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this AgreementSection 5.7 hereof, in In the event that (i) a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and (ii) either (x) prior to the first anniversary earlier of the Expiration Date and one year after the date of the Change in Control, either (x1) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 hereof or (y2) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c5.5(b) hereof as defined in Section 5.5(d) hereof, or (y) the Executive terminates the Term of Employment for any reason within 30 days after (x) his first anniversary of the date on which the Change in Control occurs, the Company shall (1) pay to the Executive any unpaid Base Salary through the effective date of termination, (2) pay to the Executive the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period year prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 3.2 hereof, and (4) pay to the Executive as a single lump sum payment an amount equal to the amount payment, within 30 days of the Executive's Base Salary for the six (6 months preceding such termination. If, during termination of the Term of Employment, any Change in Control should occur and, prior a lump sum payment equal to the first anniversary sum of (x) [two] times the sum of the date Executive's annual Base Salary, Incentive Compensation, and the value of the annual fringe benefits (based upon their cost to the Company) required to be provided to the Executive under Sections 4.2 and 4.4 hereof, for the fiscal year immediately preceding the year in which the Term of Employment terminates, plus (y) the value of the portion of his benefits under any savings, pension, profit sharing or deferred compensation plans that are forfeited under those plans by reason of the termination of his employment hereunder. Further, upon the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Controlimmediately vest. The Company shall have no further liability hereunder (other than for (1) reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.1, and (2) payment of compensation for unused vacation days that have accumulated during the calendar year in which such termination occurs).
b. For purposes of this Agreement, the term "“Change in Control" ” shall mean:: (i) The acquisition by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of more than fifty percent (50%) of either (A) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities) (the foregoing Beneficial Ownership hereinafter being referred to as a "Controlling Interest"); provided, however, that for purposes of this Section 5.6(b), the following acquisitions shall not constitute or result in a Change of Control: (v) any acquisition directly from the Company; (w) any acquisition by the Company; (x) any acquisition by any person that as of the Commencement Date owns Beneficial Ownership of a Controlling Interest; (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any subsidiary of the Company; or (z) any acquisition by any corporation pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) below; or (ii) During any period of two (2) consecutive years (not including any period prior to the Commencement Date) individuals who constitute the Board on the Commencement Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Commencement Date whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or (iii) Consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each a “Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination beneficially owns, directly or indirectly, twenty percent (20%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or any Person that as of the Commencement Date owns Beneficial Ownership of a Controlling Interest beneficially owns, directly or indirectly, more than fifty percent (50%) of the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the Board of Directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or (iv) approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.
Appears in 1 contract
Sources: Employment Agreement (Sequiam Corp)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in Executive’s employment is terminated by the Company shall occur (or any entity to which the obligations and benefits under this Agreement have been assigned, pursuant to Section 10) without Cause or by the Executive for Good Reason during the Term of Employment, and prior to the first anniversary of the date of one (1) year period immediately following the Change in Control, either then in lieu of any amounts otherwise payable under Section 6 hereof, the Executive shall be entitled to the following:
(xi) The Accrued Obligations, payable as and when those amounts would have been payable had the Term of Employment is terminated by not ended;
(ii) The Termination Year Bonus, payable within 2 1/2 months after the Company without Causelast day of the Bonus Period in which the Termination Date occurs;
(iii) A lump-sum payment equal to the Change in Control Severance Amount, pursuant to Section 5.4 hereof or payable on the sixty-first (y61st) day immediately following the Termination Date;
(iv) Provided that the Executive terminates timely elects continued coverage under the Term Consolidated Omnibus Budget Reconciliation Act of Employment 1985, as amended (“COBRA”), health and dental coverage for Good Reason pursuant to Section 5.5(c) hereof, the Company shall (1) pay to the Executive any unpaid Base Salary through and her covered dependents may be continued during the effective date Severance Term, in accordance with the terms of termination, (2) pay the applicable Company plans as in effect from time to the Executive the Incentive Compensation, if any, not yet paid to time. The Company will reimburse the Executive for the monthly COBRA cost of continued health and dental coverage paid by the Executive under the health and dental plans of the Company, less the amount that the Executive would be required to contribute for health and dental coverage if the Executive were an active employee of the Company; provided that such reimbursements shall not continue beyond the earlier of: (A) the expiration of the two year period following the Termination Date, or (B) the date the Executive commences employment with any Bonus Period person or entity and, thus, is eligible for health insurance benefits; and
(v) Vesting, immediately prior to such termination, at such time as in any Equity Awards that have not previously vested. Notwithstanding the Incentive Compensation otherwise would have been payable to the Executiveforegoing, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to this Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition6(i), if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume meet the obligations represented by the Stock Option rights requirements of a “change in control event” under Section 409A of the Executive on or prior to Code, then the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue amounts to be exercisable for a period of three months from paid under this Section 6(i) will be paid in the date of any termination of the Executive's employment by the Company following such Change forms set forth in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred prior to the date of termination, subject, however, to the provisions of Section 4.16(e).
b. For purposes of this Agreement, the term "Change in Control" shall mean:
Appears in 1 contract
Sources: Employment Agreement (Insmed Inc)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in (a) If during the event that Term a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, occurs and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Executive’s employment is terminated by the Company without Causeother than for Cause and not as a result of Executive’s death or Disability, pursuant to Section 5.4 hereof or (y) the is terminated by Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(cthen, Executive shall receive the following benefits and compensation from the Company:
(i) hereof, the Company shall (1) pay to Executive the Executive any unpaid Base Salary through Accrued Obligation within 30 days following the effective date of Executive’s date of termination, ;
(2ii) the Company shall pay to Executive a lump-sum payment consisting of 2.5 times the Executive sum of Executive’s Base Salary plus the Incentive Compensation, if any, not yet paid to the Executive for any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the average annual cash bonus received by Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business expenses incurred years prior to the date of termination, subjectpayable on the 60th day following Executive’s date of termination;
(iii) the Company shall pay Executive a pro-rated annual bonus for the year during which Executive’s date of termination occurs as a lump-sum payment in an amount equal to the highest annual bonus received by Executive in the three years prior to the date of termination multiplied by a fraction, howeverthe numerator of which is the number of days Executive was employed by the Company during the year of the termination and the denominator of which is 365, payable on the 60th day following Executive’s date of termination;
(iv) during the thirty-month period following Executive’s date of termination, the Company shall allow Executive and his eligible dependents to continue to be covered by all medical, vision and dental benefit plans maintained by the Company under which Executive was covered immediately prior to Executive’s date of termination at the same active employee premium cost as a similarly situated active employee, provided that such reimbursements shall not be made in the event the Company would be subject to any excise tax under Section 4980D of the Internal Revenue Code of 1986, as amended (the “Code”) or other penalty or liability pursuant to the provisions of the Patient Protection and Affordable Care Act of 2010 (as amended from time to time), and in lieu of providing the subsidized premiums described above, the Company shall instead pay to Executive a fully taxable monthly cash payment in an amount such that, after payment by Executive of all taxes on such payment, Executive retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of such thirty-month period; provided, further, that such benefits provided during the thirty-month period shall run concurrent with the health continuation coverage period mandated by Section 4.1)4980B of the Code;
(v) the Company will cause all unvested options, restricted stock awards and restricted stock units, previously granted by the Company to Executive, to vest on the 60th day following Executive’s date of termination;
(vi) Executive shall be entitled to receive a number of shares of Company common stock in an amount equal to the target amount of any performance units, previously granted to Executive, on the 60th day following Executive’s date of termination; and
(vii) the Company shall pay Executive the Benefit Obligation at the times specified in and in accordance with the terms of the applicable employee benefit plans and compensation arrangements. Notwithstanding the foregoing, neither Executive, nor his estate, shall be permitted to specify the taxable year in which a payment described in this Section 7(a) shall be paid.
b. (b) For purposes of this Agreement, the term "a “Change in Control" Control of the Company” shall meanmean the occurrence of any of the following after the Effective Date:
Appears in 1 contract
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(d) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(f) hereof, in either case during the twelve (12) month period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 1.0 times the sum of (x) his then current base salary and (a) the greater of (x) the average aggregate bonus he had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus he had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
8. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Sources: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)
Change in Control of the Company. a. Unless otherwise provided in this Agreement, in If the event that a Change in Control (as defined in paragraph (b) of this Section 5.6) in the Company shall occur during the Term of Employment, and prior to the first anniversary of the date of the Change in Control, either (x) the Term of Employment Employee’s employment is terminated by the Company without Cause, Without Cause pursuant to Section 5.4 2.2(e) hereof or (y) by the Executive terminates the Term of Employment Employee for Good Reason pursuant to Section 5.5(c2.2(g) hereof, in either case during the two (2) year period immediately following the Change in Control, then in lieu of any amounts otherwise payable under Section 2.4(c) hereof, the Company Employee shall (1) pay be entitled to the Executive following:
(i) payment of (a) any accrued yet unpaid Base Salary base salary through the effective date of termination, (2b) pay to the Executive the Incentive Compensation, if any, not any accrued yet paid to the Executive for unpaid bonus payable on account of any Bonus Period prior to such termination, at such time as the Incentive Compensation otherwise would have been payable to the Executive, and (3) pay to the Executive in a lump sum payment an amount equal to the amount of the Executive's Base Salary for the six (6 months preceding such termination. If, during the Term of Employment, any Change in Control should occur and, calendar year ending prior to the first anniversary year in which the termination occurs, (c) a pro-rata bonus payable on account of the year in which the termination occurs (assuming for purposes of this subclause (c) that the bonus for such year equals the average bonus Employee had received each year for the two years immediately preceding the year of the termination of employment), (d) benefits through the date of the Change in Controltermination, either (xe) the Term reimbursement of Employment is terminated by the Company without Cause, pursuant to Section 5.4 herof or (y) the Executive terminates the Term of Employment for Good Reason pursuant to Section 5.5(c) hereof, the Executive's unvested Stock Options shall be vested and become immediately exercisable. In addition, if a Change in Control transaction shall occur in which the Company is not the surviving entity and the acquiror does not agree to assume the obligations represented by the Stock Option rights of the Executive on or prior to the closing of the Change in Control transaction on such terms and conditions as shall be reasonably satisfactory to the Company, THEN the Executive's unvested Stock Options shall be vested and become immediately exercisable immediately prior to the consummation of the closing of such Change in Control transaction so as to permit the Executive to dispose of the shares of common stock underlying such Stock Options in that Change in Control transaction on substantially the same terms and conditions as are applicable to shareholders of the Company generally. If any of the Executive's Stock Options shall vest according to the applicable vesting schedule, the options which shall have vested after any such Change in Control shall continue to be exercisable for a period of three months from the date of any termination of the Executive's employment by the Company following such Change in Control. The Company shall have no further liability hereunder (other than for reimbursement for reasonable business reimbursable expenses incurred prior to the date of termination, subjectand (g) any vacation pay on account of unused vacation accruing prior to the date of termination; and
(ii) a severance amount equal to 2.99 times the sum of (x) his then current base salary and (a) the greater of (x) the average aggregate bonus he had received each year for the two years immediately preceding the year of termination of employment, and (y) the bonus he had received for the year immediately preceding the year of the termination of employment, which severance amount shall be paid in a lump sum within ten days following the termination of employment (subject to applicable withholding and employment taxes); and
(iii) provided that Employee makes a timely election to continue coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), health insurance benefits with the same coverage (subject to Company’s right to change coverage as set forth in the last sentence of this Section) provided to Employee prior to the termination (e.g. medical, dental, optical, mental health) will be provided at the Company’s cost for eighteen (18) months following the termination date, but not longer than until Employee is covered by comparable health insurance benefits from another employer or is otherwise ineligible for COBRA continuation coverage. Nothing contained herein shall restrict the ability of the Company or its successor from changing some or all of the terms of such health insurance benefits, the cost to participants or other features of such benefits; provided, however, that all similarly situated participants are treated the same.”
10. A new Section 2.9 is hereby added to the provisions of Section 4.1).
b. For purposes of this Agreement, the term "Change in Control" shall meanAgreement to read as follows:
Appears in 1 contract
Sources: Employment, Non Competition and Proprietary Rights Agreement (Vitacost.com, Inc.)