Change in Control of the Company. (a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination. (b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs: (i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction; (ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale; (iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;
Appears in 1 contract
Sources: Employment Agreement (Walden Residential Properties Inc)
Change in Control of the Company. (a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, Disability or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 7 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 1110, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Controltermination, plus Executive's cash bonus payable for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 2510% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;
Appears in 1 contract
Sources: Employment Agreement (Walden Residential Properties Inc)
Change in Control of the Company. If (ai) If there is a Change in Control (as hereinafter defined) sale, acquisition, merger, or buyout of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disabilityan unaffiliated person, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, person that is not an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock ‘affiliate’ (as hereinafter defined) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There term is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to defined under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become Company or any of its shareholders on July 1, 2008 becomes the legal and beneficial owner of more than 50% of the Company’s common stock (a ‘Change in Control’), and (ii) immediately prior to, on or within 12 months after such Change in Control, (A) the Company terminates the Term of Employment pursuant to Section 3(a)(ii) (for any reason without ‘cause’) or (B) Employee voluntarily terminates the Term of Employment pursuant to Section 3(a)(iii) in circumstances where there has been a significant reduction in the authority, responsibilities, position or compensation of Employee or Employee has been required to move the location of his principal residence a distance of more than 35 miles, and the Company has failed to remedy such situation within 30 days after receipt of Employee’s written notice thereof, then in lieu of the severance payments, if any, otherwise payable to Employee under Section 3 of the Agreement, Employee will be entitled to the following severance payments and benefits:
(a) Two times Annual Base Salary payable in 24 monthly installments beginning on the first day following the six-month anniversary of Employee’s Termination of Employment (as defined in the term "beneficial owner" is Compliance Addendum—Code Section 409A to this Agreement); plus a lump sum payment equal to the amount of any earned but unpaid bonus plus the average of the previous 3 years bonus payment, inclusive of deferred amounts, if any, which lump sum shall be paid to Employee on the first day following the six-month anniversary of Employee’s Termination of Employment. Notwithstanding the foregoing, the Board of Directors may authorize that portion of the foregoing payments under this Section 4(a) that qualify as a 409A Exempt Payment (as defined under Rule 13d-3 or any successor rule or regulation promulgated in Section 3(a)(ii)) to be paid in a single lump sum to Employee on the first payroll date following Employee’s Termination of Employment; 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 of Employment and ending on the second anniversary of Employee’s Termination of Employment and the remaining bonus amount, if any, to be paid in a single lump sum on the six-month anniversary of Employee’s Termination of Employment.
(b) During the 24-month period following Employee’s Termination of Employment (the ‘Continuation Period’) Employee will receive continuation coverage for himself and his spouse and dependents under the Exchange ActCompany’s group medical, dental and vision plans (collectively, the ‘Medical Plan’), at Employee’s sole expense, consistent with the level of coverage otherwise in effect as of his Termination of Employment. During the Continuation Period, the Company shall provide to Employee an amount such that, after the payment of all income and employment taxes due with respect to such amount, there remains an amount equal to the Company’s premium contribution paid with respect to its active employees for the level of coverage provided to Employee and his spouse and dependents under the Medical Plan during such period. Any payment required pursuant to the preceding sentence shall be paid monthly during the Continuation Period; provided, however, that that payment for the period beginning on Employee’s Termination of Employment and ending on the six month anniversary of Employee’s Termination of Employment shall be paid in a lump sum on the first day following the six month anniversary of Employee’s Termination of Employment. Nothing in this Section 4(b) shall be deemed to offset or otherwise limit the period of securities representing 25% or more continuation coverage otherwise available to Employee and his spouse and dependents under Code Section 4980B, which shall be deemed to commence following the end of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement Continuation period and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;shall be provided at Employee’s sole expense.
Appears in 1 contract
Change in Control of the Company. (a) If a Change A "change in Control (as hereinafter defined) control of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occursmean:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as A change in control of a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held nature that would be required to be reported in the aggregate by the holders of Voting Stock (as hereinafter definedresponse to Item 6(e) of Schedule 14A of Regulation 14A as in effect on the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated date hereof pursuant to the Securities Exchange Act of 1934▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇"); provided that, without limitation, such a change in control shall be deemed to have occurred at such time as amended (any Person hereafter becomes the "Exchange Act"), disclosing that any person Beneficial Owner" (as the term "person" is used defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) ), directly or indirectly, of securities representing 25% 30 percent or more of the combined voting power of the thenCompany's Voting Securities; or
(ii) During any period of two consecutive years, individuals who at the beginning of such period constitute the Board cease for any reason to con-outstanding securities stitute at least a majority thereof unless the election, or the nomination for election by the Company's shareholders, of each new director was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of the period; or
(iii) There shall be consummated (x) any consolidation or merger of the Company entitled in which the Company is not the continuing or surviving corporation or pursuant to vote generally in the election of directors which Voting Securities would be converted into cash, securities, or other property, other than a merger of the Company ("in which the holders of Voting Stock"), other than as a result Securities immediately prior to the merger have the same proportionate ownership of common stock of the transactions contemplated by surviving corporation immediately after the Contribution Agreement and merger, or (y) any sale, lease, exchange, or other transfer (in one transaction or a series of related transac-tions) of all, or substantially all of the Exchange Agreement, dated as assets of May 21, 1997 by and among the Company, Drever and provided that any such consolidation,, merger, sale, lease, exchange or other transfer consummated at the other parties named therein;insistence of an appropriate banking regulatory agency shall not constitute a change in control of the Company; or
(iv) Approval by the shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company.
Appears in 1 contract
Change in Control of the Company. (a) If a Change in Control (as hereinafter defineddefined below) of the Company occurs prior to the scheduled expiration of the Term of this Employment Agreement and within three years after the Change in Control of the Company (i) Company, the Executive is terminated by the Company for reasons other than (A) death, (B) Disabilitydisability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Dischargecause, the Company, or any successor thereto, will pay to the Executive within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 the greater of (i) three (3) times Executive's compensation, or (ii) the Executive's compensation due over the Initial Term of this agreement which, for purposes of this Section 11Section, "Executive compensation" shall mean an amount equal to the highest annualized rate of Executive's Salary salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time termination. In addition, all unvested shares of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior Company's common stock issued to the Change in Control, plus ExecutiveExecutive under the Company's cash bonus for the year immediately prior to such termination.
(b) Stock Incentive Plan shall become fully vested. For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(ia) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
(iib) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iiic) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock");
(d) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, other than as form or report or item therein) that a result change in control of the transactions contemplated Company has or may have occurred or will or may occur in the future pursuant to any then-existing contract or transaction; or
(e) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of the Company cease for any reason to constitute at least a majority thereof unless the election, or the nomination for election by the Contribution Company's stockholders, of each director of the Company first elected during such period was approved by a vote of at least two-thirds of the directors of the Company then still in office who were directors of the Company at the beginning of any such period. Notwithstanding the foregoing provision of Section 6(c) or 6(d) hereof, a "Change in Control" shall not be deemed to have occurred for purposes of this Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among solely because the Company, Drever and an entity in which the Company directly or indirectly beneficially owns 50% or more of the voting securities of such entity, any Company-sponsored employee stock ownership plan or any other parties named employee benefit plan of the Company either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein;) under the Exchange Act, disclosing beneficial ownership by it of shares of voting securities of the Company, whether in excess of 25% or otherwise, or because the Company, reports that a change in control of the Company has or may have occurred or will or may occur in the future by reason of such beneficial ownership.
Appears in 1 contract
Change in Control of the Company. (a) a. If a Change in Control (as hereinafter defined) of the Company occurs upon or prior to the scheduled expiration of the Term and within three (3) years after the Change in Control of the Company (i) Executive RKM is terminated by the Company for reasons other than (A) death, (B) Disability, Disability or (C) Cause or (ii) Executive RKM terminates his her employment as a result of Construction Constructive Discharge, the Company, within 30 thirty (30) days of ExecutiveRKM's termination of employment, will pay to ExecutiveRKM, in lieu of any severance obligation under Section 8 7 hereof, an amount equal to 2.99 two (2) times ExecutiveRKM's total compensation, which, for purposes of this Section 1110, shall mean an amount equal to the highest annualized rate of ExecutiveRKM's Salary total compensation prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) b. For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing twenty-five percent (25% %) or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;
Appears in 1 contract
Sources: Employment Agreement (Walden Residential Properties Inc)
Change in Control of the Company. (a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of If, at anytime during -------------------------------- the Term and within three years after the Change hereof, a change in Control control of the Company (ias defined in Subsection (b) Executive is terminated by the Company for reasons other than below) occurs, then within sixty (A60) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result days after receipt of Construction Discharge, written notice of such change in control of the Company, within 30 days the Executive may, by written notice to the Company (or its successor), terminate this Agreement. In the event of Executive's termination of employmentsaid termination, will pay to Executive, and in lieu of any severance obligation under amounts pursuant to Section 8 6.03 hereof, an amount (i) the Executive shall receive a lump sum payment equal to 2.99 two (2) times Executive's compensationhis then current Base Salary, which, for purposes payable within thirty (30) days after termination of this Section 11Agreement, (ii) the Company (or its successor) shall mean an amount equal maintain, at its expense, the health plan coverage of the Executive for a period of twelve (12) months after such termination, subject to termination of such health plan benefits upon the Executive becoming covered by a comparable plan offered by a subsequent employer and also subject to any changes in such plan as applicable to other executive officers and (iii) all outstanding unvested stock options granted to the highest annualized rate of Executive's Salary prior to the date of termination (x) Executive under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time a plan of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus Company for the year immediately prior purchase of shares of its Common Stock shall automatically vest and become exercisable subject to such terminationtheir respective terms.
(b) For purposes Change of this Agreement, a "Change in Controlcontrol of the Company" shall be deemed to have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated any "person" or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock "group" (as hereinafter defined"person" and "group" are defined in Sections 13(d) and 14(d) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), disclosing that any other than (A) the Executive or a person controlled by him, (as the term "person" is used in Section 13(d)(3B) a trustee or Section 14(d)(2) other fiduciary holding securities under an employee benefit plan of the Exchange ActCompany, (C) has become a person or group by reason of a transaction with the beneficial owner Company approved by the Company Board of Directors as constituted in accordance with clause (as ii) below, or (D) a corporation owned, directly or indirectly, by the term stockholders of the Company in substantially the same proportions, is or becomes the "beneficial owner" is (as defined under in Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) ), directly or indirectly, of securities of the Company representing 2515% or more of the combined voting power of the then-Company's then outstanding securities securities; or (ii) individuals who on the commencement date of this Agreement constitute members of the Company entitled Board of Directors, or successors chosen by such individuals, shall cease for any reason to vote generally in the election of directors constitute a majority of the Company ("Voting Stock"), other than as a result whole Board of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;Directors.
Appears in 1 contract
Sources: Employment Agreement (Equidyne Corp)
Change in Control of the Company. (a) If In the event of a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the Vesting Date all Units will become fully-vested and nonforfeitable as of immediately before and contingent upon the occurrence of a Change in Control, conditioned on the Participant’s continuous employment with the Company through the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "“Change in Control" ” of the Company shall be deemed to have occurred if at any time during the Term any of the following events occursif:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock any “person” (as hereinafter definedsuch term is used in Sections 13(d) and 14(d)(2) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) shall, disclosing that any person together with his, her or its “Affiliates” and “Associates” (as the term "person" is used such terms are defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation 12b-2 promulgated under the Exchange Act) ), become the “Beneficial Owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing 2550% or more of the combined voting power of the then-Company’s then outstanding securities (any such person being hereinafter referred to as an “Acquiring Person”);
(ii) the “Continuing Directors” (as hereinafter defined) shall cease to constitute a majority of the Company’s Board of Directors during a 12 month period; or
(iii) there should occur: (A) any consolidation or merger involving the Company and the Company shall not be the continuing or surviving corporation or the shares of the Company’s capital stock shall be converted into cash, securities or other property; provided, however, that this subclause (A) shall not apply to a merger or consolidation in which: i. the Company is the surviving corporation and ii. the shareholders of the Company entitled immediately prior to vote generally in the election of directors transaction have the same proportionate ownership of the Company ("Voting Stock"), other than as a result capital stock of the transactions contemplated by surviving corporation immediately after the Contribution Agreement and transaction; or (B) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the Exchange assets of the Company.
(c) For purposes of this Agreement, dated as a “Continuing Director” shall mean any person who is a member of May 21, 1997 by and among the Board of Directors of the Company, Drever while such person is a member of the Board of Directors, who is not an Acquiring Person, an Affiliate or Associate of an Acquiring Person or a representative of an Acquiring Person or of any such Affiliate or Associate and who: (i) was a member of the other parties named therein;Company’s Board of Directors on the Grant Date, or (ii) subsequently became a member of the Board of Directors, upon the nomination or recommendation, or with the approval of, a majority of the Continuing Directors.
Appears in 1 contract
Sources: Retention Share Unit Award Agreement (AxoGen, Inc.)
Change in Control of the Company. (a) If a Change A "change in Control (as hereinafter defined) control of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, ------------------------------------ the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occursmean:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as A change in control of a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held nature that would be required to be reported in the aggregate by the holders of Voting Stock (as hereinafter definedresponse to Item 6(e) of Schedule 14A of Regulation 14A as in effect on the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated date hereof pursuant to the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"); provided that, disclosing that without limitation, such a change in control shall be deemed to have occurred at such time as any person Person hereafter becomes the "Beneficial Owner" (as the term "person" is used defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) ), directly or indirectly, of securities representing 25% 30 percent or more of the combined voting power of the thenCompany's Voting Securities; or
(ii) During any period of two consecutive years, individuals who at the beginning of such period constitute the Board cease for any reason to constitute at least a majority thereof unless the election, or the nomination for election by the Company's shareholders, of each new director was approved by a vote of at least two-outstanding securities thirds of the directors then still in office who were directors at the beginning of the period; or (iii) There shall be consummated (x) any consolidation or merger of the Company entitled in which the Company is not the continuing or surviving corporation or pursuant to vote generally in the election of directors which Voting Securities would be converted into cash, securities, or other property, other than a merger of the Company ("in which the holders of Voting Stock"), other than as a result Securities immediately prior to the merger have the same proportionate ownership of common stock of the transactions contemplated by surviving corporation immediately after the Contribution Agreement and merger, or (y) any sale, lease, exchange, or other transfer (in one transaction or a series of related transactions) of all, or substantially all of the Exchange Agreement, dated as assets of May 21, 1997 by and among the Company, Drever and provided that any such consolidation, merger, sale, lease, exchange or other transfer consummated at the other parties named therein;insistence of an appropriate banking regulatory agency shall not constitute a change in control of the Company; or
Appears in 1 contract
Change in Control of the Company. (a) If a. Unless otherwise provided in Section 6.7 hereof, in the event that a Change in Control (as hereinafter defineddefined in paragraph g. of this Section 6.6) in the Company shall occur during the Term of Employment, the Company shall (i) pay to the Executive, within thirty (30) days of the Company occurs date of the Change in Control, a lump sum bonus equal to one times the Executive's annual Base Salary (the "Change in Control Date Bonus"), and (ii) accelerate the vesting of all AmeriPath Stock Options which have been granted to the Executive but are unvested, so that the unvested shares are one hundred (100) percent vested on the date of the Change in Control.
b. If the Executive's Term of Employment is terminated prior to the scheduled expiration date on which a Change of the Term Control occurs, and within three years after the Change in Control of the Company it is reasonably demonstrated that such termination (i) Executive is terminated by was at the Company for reasons other than (A) deathrequest of a third party who has taken steps reasonably calculated to effect a Change of Control, (B) Disability, or (C) Cause or (ii) otherwise arose in connection with or anticipation of a Change of Control, then for all purposes hereunder, a "Change of Control Termination" shall be deemed to have occurred.
c. If Executive's Term of Employment is terminated without cause pursuant to Section 6.4 hereof, within one year after a Change of Control, a "Change of Control Termination" shall be deemed to have occurred.
d. If, within one year following a Change of Control, (i) the Company requires the Executive terminates his employment as a result to be based at any office or location more than twenty-five (25) miles from that in which the Executive was based at the time this Agreement was executed (except for travel reasonably required in the performance of Construction Dischargethe Executive's duties and responsibilities hereunder), or (ii) 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 the most significant of those held, exercised and assigned at the time preceding the Change in Control, then in either event, the CompanyExecutive may elect to terminate this Agreement and a "Change of Control Termination" shall be deemed to have occurred.
e. In the event of a "Change of Control Termination" under paragraphs b, c, or d of this Section 6.6, the Company shall:
(i) pay to the Executive any accrued and unpaid Base Salary and Bonus Payment, through the effective date of the termination;
(ii) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 4.2b hereof;
(iii) pay to the Executive, within 30 days of the termination of his employment hereunder, a lump sum payment equal to one times the Executive's termination annual Base Salary;
(iv) accelerate the vesting of employmentall AmeriPath Stock Options which have been granted to the Executive since the Change in Control but are unvested, will so that the unvested shares are one hundred (100) percent vested as of the Executive's Termination Date; and
(v) pay to Executive, the Executive in lieu of any severance obligation under a lump sum the compensation and benefits provided in the Termination Without Cause Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, 6.4. The Company shall have no further liability hereunder (other than for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary reimbursement for reasonable business expenses incurred prior to the date of termination (x) under termination, subject, however, to the provisions of Section 4(a)(i) hereof if Executive is Executive Vice President 5.1, and payment of Property Management at compensation for accrued and unused vacation days).
f. If, on the time date of the one-year anniversary of the date of the Change In Control, the Executive is in Control the employ of the Company, or (y) under Section 4(a)(ii) hereof if any successor thereto or assign thereof, the Executive shall have exercised be paid, on such one- year anniversary date, an additional lump sum bonus equal to one times the Consultant Election Executive's annual Base Salary as determined immediately prior to the Change in Control, plus Executive's cash bonus for Control Date (the year immediately prior to such termination"Anniversary Bonus").
(b) g. For purposes of this Agreement, a the term "Change in Control" ----------------- shall have occurred if at any time during the Term any of the following events occursmean:
(i) The Approval by the shareholders of the Company is mergedof (x) a reorganization, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) shareholders of the Company immediately prior to such transaction;
(ii) The Company sells all reorganization, merger or substantially all of its assets to any other corporation consolidation or other legal persontransaction do not, less immediately thereafter, own more than a majority 50% of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company 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 "Voting StockIncumbent Board")) cease for any reason to --------------- constitute at least a majority of the Board, provided 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 as a result 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 transactions contemplated by Directors of the Contribution Agreement and the Exchange Company) shall be, for purposes of this Agreement, dated considered as though such person were a member of the Incumbent Board; or
(iii) the acquisition (other than by or 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 beneficial ownership within the meaning of Rule 13-d promulgated under the Securities Exchange Act of 50% or more 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, (2) any person, entity or "group" that as of May 21, 1997 by and among the Company, Drever and Commencement Date of this Agreement owns beneficial ownership (within the other parties named therein;meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of the Company or its Subsidiaries].
Appears in 1 contract
Sources: Employment Agreement (Ameripath Inc)
Change in Control of the Company. (a) If a Change in Control (as hereinafter defineddefined below) of the Company occurs prior to the scheduled expiration of the Term of this Employment Agreement and within three years after the Change in Control of the Company (i) Company, the Executive is terminated by the Company for reasons other than (A) death, (B) Disabilitydisability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Dischargecause, the Company, or any successor thereto, will pay to the Executive within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 the greater of (i) three (3) times Executive's compensation, or (ii) the Executive's compensation due over the Initial Term of this agreement which, for purposes of this Section 11Section, "Executive compensation" shall mean an amount equal to the highest annualized rate of Executive's Salary salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time termination. In addition, all unvested shares of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior Company's common stock issued to the Change in Control, plus ExecutiveExecutive under the Company's cash bonus for the year immediately prior to such termination.
(b) Stock Incentive Plan shall become fully vested. For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Initial Term any of the following events occurs:
(ia) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
(iib) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iiic) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock");
(d) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any successor schedule, other than as form or report or item therein) that a result change in control of the transactions contemplated Company has or may have occurred or will or may occur in the future pursuant to any then-existing contract or transaction; or
(e) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the directors of the Company cease for any reason to constitute at least a majority thereof unless the election, or the nomination for election by the Contribution Company's stockholders, of each director of the Company first elected during such period was approved by a vote of at least two-thirds of the directors of the Company then still in office who were directors of the Company at the beginning of any such period. Notwithstanding the foregoing provision of Section 6(c) or 6(d) hereof, a "Change in Control" shall not be deemed to have occurred for purposes of this Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among solely because the Company, Drever and an entity in which the Company directly or indirectly beneficially owns 50% or more of the voting securities of such entity, any Company-sponsored employee stock ownership plan or any other parties named employee benefit plan of the Company either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein;) under the Exchange Act, disclosing beneficial ownership by it of shares of voting securities of the Company, whether in excess of 25% or otherwise, or because the Company, reports that a change in control of the Company has or may have occurred or will or may occur in the future by reason of such beneficial ownership.
Appears in 1 contract
Change in Control of the Company. (a) If In the event of a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company prior to the end of the Performance Period, Shares shall be issued based on the greater of: (i) Executive is terminated by the Company for reasons other than Target Performance Units (100% of the Revenue target achieved as provided in Appendix A) death, (B) Disability, or (C) Cause ); or (ii) Executive terminates his employment the expected performance as a result of Construction Discharge, determined by the Company, within 30 days of Executive's termination of employment, will pay to Executive, Committee in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal its sole discretion immediately prior to the highest annualized rate consummation of Executive's Salary the Change in Control. All such Units will become fully-vested.
(b) In the event of a Change in Control of the Company prior to the date that all Eligible Shares meet the vesting requirements of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President 3 of Property Management at this Agreement, all unvested Eligible Shares will vest immediately prior to the time consummation of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior and be issued to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.Participant
(bc) For purposes of this Agreement, a "“Change in Control" ” of the Company shall be deemed to have occurred if at any time during the Term any of the following events occursif:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock any “person” (as hereinafter definedsuch term is used in Sections 13(d) and 14(d)(2) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) shall, disclosing that any person together with his, her or its “Affiliates” and “Associates” (as the term "person" is used such terms are defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation 12b-2 promulgated under the Exchange Act) ), become the “Beneficial Owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing 2550% or more of the combined voting power of the then-Company’s then outstanding securities (any such person being hereinafter referred to as an “Acquiring Person”);
(ii) the “Continuing Directors” (as hereinafter defined) shall cease to constitute a majority of the Company’s Board of Directors during a 12 month period; or
(iii) there should occur: (A) any consolidation or merger involving the Company and the Company shall not be the continuing or surviving corporation or the shares of the Company’s capital stock shall be converted into cash, securities or other property; provided, however, that this subclause (A) shall not apply to a merger or consolidation in which: i. the Company is the surviving corporation and ii. the shareholders of the Company entitled immediately prior to vote generally in the election of directors transaction have the same proportionate ownership of the Company ("Voting Stock"), other than as a result capital stock of the transactions contemplated by surviving corporation immediately after the Contribution Agreement and transaction; or (B) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the Exchange assets of the Company.
(d) For purposes of this Agreement, dated as a “Continuing Director” shall mean any person who is a member of May 21, 1997 by and among the Board of Directors of the Company, Drever while such person is a member of the Board of Directors, who is not an Acquiring Person, an Affiliate or Associate of an Acquiring Person or a representative of an Acquiring Person or of any such Affiliate or Associate and who: (i) was a member of the other parties named therein;Company’s Board of Directors on the Grant Date, or (ii) subsequently became a member of the Board of Directors, upon the nomination or recommendation, or with the approval of, a majority of the Continuing Directors.
Appears in 1 contract
Sources: Performance Stock Unit Award Agreement (AxoGen, Inc.)
Change in Control of the Company. (a) If In the event of a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the Vesting Dates all Units will become fully-vested and nonforfeitable as of immediately before and contingent upon the occurrence of a Change in Control, conditioned on the Participant’s continuous employment with the Company through the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "“Change in Control" ” of the Company shall be deemed to have occurred if at any time during the Term any of the following events occursif:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock any “person” (as hereinafter definedsuch term is used in Sections 13(d) and 14(d)(2) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) shall, disclosing that any person together with his, her or its “Affiliates” and “Associates” (as the term "person" is used such terms are defined in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation 12b-2 promulgated under the Exchange Act) ), become the “Beneficial Owner” (as such term is defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company representing 2550% or more of the combined voting power of the then-Company’s then outstanding securities (any such person being hereinafter referred to as an “Acquiring Person”);
(ii) the “Continuing Directors” (as hereinafter defined) shall cease to constitute a majority of the Company’s Board of Directors during a 12 month period; or
(iii) there should occur: (A) any consolidation or merger involving the Company and the Company shall not be the continuing or surviving corporation or the shares of the Company’s capital stock shall be converted into cash, securities or other property; provided, however, that this subclause (A) shall not apply to a merger or consolidation in which: i. the Company is the surviving corporation and ii. the shareholders of the Company entitled immediately prior to vote generally in the election of directors transaction have the same proportionate ownership of the Company ("Voting Stock"), other than as a result capital stock of the transactions contemplated by surviving corporation immediately after the Contribution Agreement and transaction; or (B) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the Exchange assets of the Company.
(c) For purposes of this Agreement, dated as a “Continuing Director” shall mean any person who is a member of May 21, 1997 by and among the Board of Directors of the Company, Drever while such person is a member of the Board of Directors, who is not an Acquiring Person, an Affiliate or Associate of an Acquiring Person or a representative of an Acquiring Person or of any such Affiliate or Associate and who: (i) was a member of the other parties named therein;Company’s Board of Directors on the Grant Date, or (ii) subsequently became a member of the Board of Directors, upon the nomination or recommendation, or with the approval of, a majority of the Continuing Directors.
Appears in 1 contract
Sources: Restricted Stock Unit Award Agreement (AxoGen, Inc.)
Change in Control of the Company. (a) If a. Unless otherwise provided in Section 6.7 hereof, in the event that a Change in Control (as hereinafter defineddefined in paragraph g. of this Section 6.6) in the Company shall occur during the Term of Employment, the Company shall
(i) pay to the Executive, within thirty (30) days of the Company occurs date of the Change in Control, a lump sum bonus equal to two (2) times the Executive's annual Base Salary and Bonus (the "Change in Control Date Bonus"). This payment will be made only as a result of a. Board approval, or b. if the per share selling price is greater than the average per share price for the previous six (6) month trading period;
(ii) accelerate the vesting of all AmeriPath Stock Options which have been granted to the Executive but are unvested, so that the unvested shares are one hundred (100) percent vested on the date of the Change in Control.
b. If the Executive's Term of Employment is terminated prior to the scheduled expiration date on which a Change of the Term Control occurs, and within three years after the Change in Control of the Company it is reasonably demonstrated that such termination (i) Executive is terminated by was at the Company for reasons other than (A) deathrequest of a third party who has taken steps reasonably calculated to effect a Change of Control, (B) Disability, or (C) Cause or (ii) otherwise arose in connection with or anticipation of a Change of Control, then for all purposes hereunder, a "Change of Control Termination" shall be deemed to have occurred.
c. If Executive's Term of Employment is terminated without cause pursuant to Section 6.4 hereof, within one year after a Change of Control, a "Change of Control Termination" shall be deemed to have occurred.
d. If, within one year following a Change of Control, (i) the Company requires the Executive terminates his employment as a result to be based at any office or location more than twenty-five (25) miles from that in which the Executive was based at the time this Agreement was executed (except for travel reasonably required in the performance of Construction Dischargethe Executive's duties and responsibilities hereunder), or (ii) 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 the most significant of those held, exercised and assigned at the time preceding the Change in Control, then in either event, the CompanyExecutive may elect to terminate this Agreement and a "Change of Control Termination" shall be deemed to have occurred.
e. In the event of a "Change of Control Termination" under paragraphs b, c, or d of this Section 6.6, the Company shall:
(i) pay to the Executive any accrued and unpaid Base Salary and Bonus Payment, through the effective date of the termination;
(ii) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 4.2b hereof;
(iii) pay to the Executive, within 30 days of the termination of his employment hereunder, a lump sum payment equal to two (2) times the Executive's termination annual Base Salary and Bonus;
(iv) accelerate the vesting of employmentall AmeriPath Stock Options which have been granted to the Executive since the Change in Control but are unvested, will so that the unvested shares are one hundred (100) percent vested as of the Executive's Termination Date; and
(v) pay to Executive, the Executive in lieu of any severance obligation under a lump sum the compensation and benefits provided in the Termination Without Cause Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, 6.4. The Company shall have no further liability hereunder (other than for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary reimbursement for reasonable business expenses incurred prior to the date of termination (x) under termination, subject, however, to the provisions of Section 4(a)(i) hereof if Executive is Executive Vice President 5.1, and payment of Property Management at compensation for accrued and unused vacation days).
f. If, on the time date of the one-year anniversary of the date of the Change In Control, the Executive is in Control the employ of the Company, or (y) under Section 4(a)(ii) hereof if any successor thereto or assign thereof, the Executive shall have exercised be paid, on such one- year anniversary date, an additional lump sum bonus equal to one times the Consultant Election Executive's annual Base Salary and Bonus as determined immediately prior to the Change in Control, plus Executive's cash bonus for Control Date (the year immediately prior to such termination"Anniversary Bonus").
(b) g. For purposes of this Agreement, a the term "Change in Control" ----------------- shall have occurred if at any time during the Term any of the following events occursmean:
(i) The Approval by the shareholders of the Company is mergedof (x) a reorganization, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) shareholders of the Company immediately prior to such transaction;
(ii) The Company sells all reorganization, merger or substantially all of its assets to any other corporation consolidation or other legal persontransaction do not, less immediately thereafter, own more than a majority 50% of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company 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 "Voting StockIncumbent Board")) cease for any reason to --------------- constitute at least a majority of the Board, provided 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 as a result 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 transactions contemplated by Directors of the Contribution Agreement and the Exchange Company) shall be, for purposes of this Agreement, dated considered as though such person were a member of the Incumbent Board; or
(iii) the acquisition (other than by or 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 beneficial ownership within the meaning of Rule 13-d promulgated under the Securities Exchange Act of 50% or more of either the then out standing 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, (2) any person, entity or "group" that as of May 21, 1997 by and among the Company, Drever and Commencement Date of this Agreement owns beneficial ownership (within the other parties named therein;meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of the Company or its Subsidiaries].
Appears in 1 contract
Sources: Employment Agreement (Ameripath Inc)
Change in Control of the Company. 1.7.1 A “Change in Control” of the Company shall be deemed to have occurred if:
(a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive There is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occursconsummated:
(i) The any consolidation or merger of the Company with another Person, if (A) the Company is mergednot the Surviving Person in such consolidation or merger, consolidated or reorganized (B) the shares of the Company’s Voting Securities are converted into or with another corporation cash, other securities or other legal person and as property, provided, however, that any such merger or consolidation shall not constitute a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held Change in the aggregate by Control if the holders of the Company’s Voting Stock (as hereinafter defined) of the Company Securities immediately prior to such transaction;merger or consolidation will own, in the aggregate, at least fifty percent (50%) of the outstanding Voting Securities of the Surviving Person (or its Parent, if any) immediately after consummation of such merger or consolidation; or
(ii) The Company sells all any sale, exchange or other transfer, including a lease (in one transaction or a series of related transactions within a period of 12 consecutive months) of all, or substantially all all, of its the assets to any of the Company, provided, however, that such sale, exchange or other transfer shall not constitute a Change in Control if (A) the Person acquiring such assets is a corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of entity in which are held in the aggregate by the holders of the Company’s Voting Stock of the Company Securities immediately prior to such sale;transaction will own, in the aggregate, at least fifty percent (50%) of the outstanding Voting Securities of the Person acquiring such assets (or of the Parent thereof, if any), immediately after consummation of such transaction, or (ii) such Person is a “related person” within the meaning of Treasury Regulation § 1.409A-3(i)(5)(vii)(B) promulgated under the Code; or
(iiib) There is a report filed on Schedule 13D or Schedule 14D-1 (any Person, or any successor schedule, form or report), each as promulgated pursuant to group of Persons acting in concert (within the Securities Exchange Act meaning of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(313(d) or Section 14(d)(2) of the Exchange Act), shall directly or indirectly acquire (other than in or as a result of a transaction described in Paragraph 1.7(a) has become the above) beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) ownership of securities representing 25% of the Company possessing fifty percent (50%) or more of the total combined voting power of the then-Company’s then outstanding securities, unless:
(i) the Person or group making such acquisition of beneficial ownership (the “Acquiring Person”) was (A) the Company or an Affiliate of the Company, (B) an employee benefit plan of Company or any of its Affiliates or a trustee or other fiduciary holding securities under any such employee benefit plan, or (C) an underwriter temporarily holding securities of the Company entitled pursuant to vote generally a firmly underwritten public offering of such securities, or
(ii) the transaction that caused such Acquiring Person’s beneficial ownership to exceed fifty percent(50%) of the outstanding Voting Securities of the Company was a purchase by the Acquiring Person of Voting Securities of the Company in a firmly underwritten public offering thereof; or
(c) Over a period of twenty-four (24) consecutive months or less, there is a change in the composition of the Company’s Board such that a majority of the Board members (rounded up to the next whole number, if a fraction) ceases, by reason of one or more proxy contests for the election of directors Board members, to be composed of individuals who either (i) have been Board members continuously since the beginning of that 24-month period, or (ii) have been elected or nominated for election as Board members during such period by at least a majority of the Board members described in the preceding clause (i) who were still in office at the time that election or nomination was approved by the Board.
1.7.2 Notwithstanding the foregoing, however:
(a) For purposes of this Agreement a “Change in Control” within the meaning of this Section 1.7 shall not be deemed to have occurred solely as the result of any acquisition of Voting Securities by the Company or any subsidiary thereof that has the effect of (i) reducing the number of the Company’s outstanding Voting Securities, or (ii) increasing the beneficial ownership of the Company’s Voting Securities by any Person to fifty percent (50%) or more of the Company’s outstanding Voting Securities; provided, however, that, if any such Person shall thereafter acquire beneficial ownership, directly or indirectly, of any additional Voting Securities of the Company ("Voting Stock"), other than as pursuant to a result stock split, stock dividend, or similar transaction) and immediately thereafter beneficially owns fifty percent (50%) or more of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as then outstanding Voting Securities of May 21, 1997 by and among the Company, Drever then, a “Change in Control” shall be deemed to have occurred for purposes of this Section 1.7; and
(b) If and to the other parties named therein;extent that any amount constituting deferred compensation (as defined in Section 409A of the Code) would become payable under this Agreement by reason of the consummation of a Change in Control of the Company (as hereinabove defined), such amount will become payable only if the event constituting the Change in Control would also qualify as a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, each as defined within the meaning of Code Section 409A (as it has been heretofore amended or as may be amended from time to time hereafter), and any proposed or final Treasury Regulations and IRS guidance that has been or that may be promulgated thereunder from time to time.
Appears in 1 contract
Change in Control of the Company. (a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Constructive Discharge, the CompanyCompany or any successor thereto, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 7 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 1110, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Controltermination, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
; (ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;
Appears in 1 contract
Sources: Employment Agreement (Walden Residential Properties Inc)
Change in Control of the Company. (a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the CompanyCompany or any successor thereto, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management Chairman at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Control, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;
Appears in 1 contract
Sources: Employment Agreement (Walden Residential Properties Inc)
Change in Control of the Company. (a) If a Change in Control (as hereinafter defined) of the Company occurs prior to the scheduled expiration of the Term and within three years after the Change in Control of the Company (i) Executive is terminated by the Company for reasons other than (A) death, (B) Disability, or (C) Cause or (ii) Executive terminates his employment as a result of Construction Discharge, the Company, within 30 days of Executive's termination of employment, will pay to Executive, in lieu of any severance obligation under Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, for purposes of this Section 1110, shall mean an amount equal to the highest annualized rate of Executive's Salary prior to the date of termination (x) under Section 4(a)(i) hereof if Executive is Executive Vice President of Property Management at the time of the Change in Control or (y) under Section 4(a)(ii) hereof if Executive shall have exercised the Consultant Election prior to the Change in Controltermination, plus Executive's cash bonus for the year immediately prior to such termination.
(b) For purposes of this Agreement, a "Change in Control" shall have occurred if at any time during the Term any of the following events occurs:
(i) The Company is merged, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority of the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) of the Company immediately prior to such transaction;
(ii) The Company sells all or substantially all of its assets to any other corporation or other legal person, less than a majority of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors of the Company ("Voting Stock"), other than as a result of the transactions contemplated by the Contribution Agreement and the Exchange Agreement, dated as of May 21, 1997 by and among the Company, Drever and the other parties named therein;
Appears in 1 contract
Sources: Employment Agreement (Walden Residential Properties Inc)
Change in Control of the Company. (a) If a. Unless otherwise provided in Section 6.7 hereof, in the event that a Change in Control (as hereinafter defineddefined in paragraph g. of this Section 6.6) in the Company shall occur during the Term of Employment, the Company shall (i) pay to the Executive, within thirty (30) days of the Company occurs date of the Change in Control, a lump sum bonus equal to one and one half times the Executive's annual Base Salary (the "Change in Control Date Bonus"), and (ii) accelerate the vesting of all AmeriPath Stock Options which have been granted to the Executive but are unvested, so that the unvested shares are one hundred (100) percent vested on the date of the Change in Control.
b. If the Executive's Term of Employment is terminated prior to the scheduled expiration date on which a Change of the Term Control occurs, and within three years after the Change in Control of the Company it is reasonably demonstrated that such termination (i) Executive is terminated by was at the Company for reasons other than (A) deathrequest of a third party who has taken steps reasonably calculated to effect a Change of Control, (B) Disability, or (C) Cause or (ii) otherwise arose in connection with or anticipation of a Change of Control, then for all purposes hereunder, a "Change of Control Termination" shall be deemed to have occurred.
c. If Executive's Term of Employment is terminated without cause pursuant to Section 6.4 hereof, within one year after a Change of Control, a "Change of Control Termination" shall be deemed to have occurred.
d. If, within one year following a Change of Control, (i) the Company requires the Executive terminates his employment as a result to be based at any office or location more than twenty-five (25) miles from that in which the Executive was based at the time this Agreement was executed (except for travel reasonably required in the performance of Construction Dischargethe Executive's duties and responsibilities hereunder), or (ii) 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 the most significant of those held, exercised and assigned at the time preceding the Change in Control, then in either event, the CompanyExecutive may elect to terminate this Agreement and a "Change of Control Termination" shall be deemed to have occurred.
e. In the event of a "Change of Control Termination" under paragraphs b, c, or d of this Section 6.6, the Company shall:
(i) pay to the Executive any accrued and unpaid Base Salary and Bonus Payment, through the effective date of the termination;
(ii) pay to the Executive his Termination Year Bonus, if any, at the time provided in Section 4.2b hereof;
(iii) 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 termination annual Base Salary;
(iv) accelerate the vesting of employmentall AmeriPath Stock Options which have been granted to the Executive since the Change in Control but are unvested, will so that the unvested shares are one hundred (100) percent vested as of the Executive's Termination Date; and
(v) pay to Executive, the Executive in lieu of any severance obligation under a lump sum the compensation and benefits provided in the Termination Without Cause Section 8 hereof, an amount equal to 2.99 times Executive's compensation, which, 6.4. The Company shall have no further liability hereunder (other than for purposes of this Section 11, shall mean an amount equal to the highest annualized rate of Executive's Salary reimbursement for reasonable business expenses incurred prior to the date of termination (x) under termination, subject, however, to the provisions of Section 4(a)(i) hereof if Executive is Executive Vice President 5.1, and payment of Property Management at compensation for accrued and unused vacation days).
f. If, on the time date of the one-year anniversary of the date of the Change In Control, the Executive is in Control the employ of the Company, or (y) under Section 4(a)(ii) hereof if any successor thereto or assign thereof, the Executive shall have exercised be paid, on such one- year anniversary date, an additional lump sum bonus equal to one (1) times the Consultant Election Executive's annual Base Salary as determined immediately prior to the Change in Control, plus Executive's cash bonus for Control Date (the year immediately prior to such termination"Anniversary Bonus").
(b) g. For purposes of this Agreement, a the term "Change in Control" ----------------- shall have occurred if at any time during the Term any of the following events occursmean:
(i) The Approval by the shareholders of the Company is mergedof (x) a reorganization, consolidated or reorganized into or with another corporation or other legal person and as a result of such merger, consolidation or reorganization less than a majority other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the combined voting power of the then-outstanding securities of such corporation or person immediately after such transaction are held in the aggregate by the holders of Voting Stock (as hereinafter defined) shareholders of the Company immediately prior to such transaction;
(ii) The Company sells all reorganization, merger or substantially all of its assets to any other corporation consolidation or other legal persontransaction do not, less immediately thereafter, own more than a majority 50% of the combined voting power of the then-outstanding voting securities of which are held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale;
(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing 25% or more of the combined voting power of the then-outstanding securities of the Company 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 "Voting StockIncumbent Board")) cease for any reason to --------------- constitute at least a majority of the Board, provided 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 as a result 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 transactions contemplated by Directors of the Contribution Agreement and the Exchange Company) shall be, for purposes of this Agreement, dated considered as though such person were a member of the Incumbent Board; or
(iii) the acquisition (other than by or 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 beneficial ownership within the meaning of Rule 13-d promulgated under the Securities Exchange Act of 50% or more 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, (2) any person, entity or "group" that as of May 21, 1997 by and among the Company, Drever and Commencement Date of this Agreement owns beneficial ownership (within the other parties named therein;meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of the Company or its Subsidiaries].
Appears in 1 contract
Sources: Employment Agreement (Ameripath Inc)