Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive. (b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date. (c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits). (d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof. (e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year. (f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Employment Agreement (Alottafun Inc), Employment Agreement (Alottafun Inc), Employment Agreement (Alottafun Inc)
Change of Control. (a) For If Executive is terminated without Cause, a Termination Date occurs on a June 30 due to non-renewal by the purposes Company of the term of this AgreementAgreement under Section 2.1, or Executive terminates his employment for Good Reason, in each such case during the one year period following a "Change of Control (as defined below), then in addition to payments and benefits to which Executive is entitled under Section 4.6, Executive also shall receive reimbursement for reasonable (in the discretion of the Company) and actual expenses incurred by Executive for six months of out-placement services.
(b) If a Change of Control shall have occurred:
(i) after such Change of Control Executive’s entitlement to Bonus under Section 3.2 may be modified by the new controlling Person in a reasonable manner (not to afford Executive with materially less opportunity to earn bonus than existed prior to the Change of Control" ) so that such Bonus is calculated with reference to a performance-based bonus plan provided by the new controlling Person; and
(ii) after such Change of Control Executive’s entitlement to payments and benefits under Sections 3.3 and 3.4 may be modified by the new controlling Person to entitlement to those benefits generally provided to senior executives of the new controlling Person.
(c) A “Change of Control” shall be deemed to have taken place occurred if:
(i) a change in control has occurred of a nature that would be required to be reported in a proxy statement with respect to the Company (even if the Company is not actually subject to said reporting requirements) in response to Item 6(e) (or any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively comparable or immediately, including a "group" as defined in Section 13(d)(3successor Item) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), becomes except that any merger, consolidation or corporate reorganization in which the owner or beneficial owner owners of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for ’s capital stock entitled to vote in the election of directors (the “Voting Stock”) prior to said combination receive 75% or more of the resulting entity’s Voting Stock shall not be considered a change in control for the purposes of this Plan;
(ii) any “person” (as that term is used in Sections 13(d) and 14(d)(2) of the Exchange Act, excluding any stock purchase or employee stock ownership plan maintained by the Company or a Related Company) becomes the “beneficial owner” (as that term is defined by the Securities and Exchange Commission for purposes of Section 13(d) of the Exchange Act), directly or indirectly, of more than 15% of the outstanding voting stock of the Company or its successors; or
(other than as iii) during any period of two consecutive years a result majority of an issuance the Board of securities specifically Directors no longer consists of individuals who were members of the Board of Directors at the beginning of such period, unless the election of each director who was not a director at the beginning of the period was approved by Executive and specifically excluded from the provisions a vote of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50at least 75% of the combined voting power directors still in office who were directors at the beginning of the Company is the Executive or an entity (or entities) controlled by the Executiveperiod.
(bd) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")In connection with, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Termor within one year after, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, if all or any portion of the payments or other benefits paid or payable to Executive is requestedunder this Agreement and under any other plan, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state program or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies agreement of the Company and or its affiliates are determined to constitute an excess parachute payment within the Executive voluntarily terminates employment within sixty (60) days meaning of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as it may have been or may be amended on or after the date of this Agreement (the “Code”), and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid results in the next imposition on Executive of an excise tax yearunder Section 4999 of the Code, then, in addition to any other benefits to which Executive is entitled under this Agreement, H▇▇▇▇▇ shall pay to Executive an amount equal to the sum of (i) the excise tax payable by Executive by reason of receiving excess payments; and (ii) a gross-up amount necessary to offset any and all applicable federal, state, and local excise, income, or other taxes incurred by Executive by reason of H▇▇▇▇▇’▇ payment of the excise tax described in (i) above (but not including any additional amount to offset any taxes on the excise tax reimbursement or gross-up amount paid pursuant to this subclause (ii)).
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Employment Agreement (Harris Interactive Inc), Employment Agreement (Harris Interactive Inc), Employment Agreement (Harris Interactive Inc)
Change of Control. In the event (ax) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if (as defined in the person who becomes the owner of more that 50% Program) occurs and (y) within two years after consummation of the combined voting power Change of Control, the Grantee’s employment with the Company is terminated either by the Executive Company without Cause or by the Grantee for Good Reason (as defined below), then the Award shall vest in full upon such termination of employment. For this purpose, “Good Reason” means (X) if the Grantee is employed under a written employment agreement with the Company or an entity Affiliate which includes a definition of “good reason”, the definition of “good reason” in that agreement, or (Y) if the Grantee is not employed under a written employment agreement with the Company or entities) controlled by an Affiliate which includes a definition of “good reason”, “Good Reason” means the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ occurrence of any of the Company on following within two years after the date on which a Change occurrence of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, unless done with the Executive prior written consent of the Grantee, where notice of termination is requested, and, in his sole and absolute discretion, consents to change his principal business location, provided as described below: (I)(A) the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence assignment to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up Grantee of any state duties inconsistent in any material adverse respect with his or federal taxes payable by Executive as her position, duties, authority or responsibilities, or (B) a result material diminution of any such reimbursements. If the Executive shall not consent to change his business locationGrantee’s duties, the Executive may continue to provide the services required of him hereunder authority or responsibilities in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to effect immediately before the Change of Control Date.
Control; (cII) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation the Grantee’s annual base salary or target annual bonus; or (III) the Company’s requiring the Grantee’s primary office to be more than 50 miles from its then current location but only if the new office is also more than 50 miles from the Grantee’s principal residence; provided that the Grantee must provide written notice of his or her intention to terminate employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in for Good Reason to the business objectives or policies Company within 60 days of having actual knowledge of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added events giving rise to such lump-sumGood Reason, do not exceed 299% of which sets forth in reasonable detail the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended facts and any regulations promulgated thereunder) circumstances claimed to provide a basis for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Controltermination for Good Reason, the Company will allow shall have 30 days from its receipt of such notice to remedy the Executive condition, in which case Good Reason shall no longer exist with regard to participate in all meetings such condition, and negotiations related theretoany date of termination for Good Reason shall not be more than 180 days after the Good Reason event occurs.
Appears in 3 contracts
Sources: Restricted Stock Unit Agreement (Xl Group LTD), Restricted Stock Unit Agreement (Xl Group LTD), Restricted Stock Unit Agreement (Xl Group PLC)
Change of Control. (a) For Notwithstanding any other provision contained herein, the purposes Employee's Initial Options and other options issued under the Company's share option plans that are not then
(b) If (i) the employment of the Employee is terminated by the Company (or any successor thereto) without Serious Cause or (ii) the Employee terminates employment with the Company (or successor thereto) for Good Reason, in each case within the period commencing on the date that a Change of Control is formally proposed to the Company's Board of Directors and ending on the first anniversary of the date on which such Change of Control occurs, then the Employee shall be entitled to receive (in lieu of the benefits described in Section 11): (1) any accrued but unpaid salary, (2) a lump sum payment equal to two times such Employee's annual base salary as of the date of termination, (3) any accrued but unpaid bonus from a prior fiscal year, (4) reimbursement of business expenses incurred prior to the date of termination, (5) travel and housing allowances under Section 9 for one year following the date of termination, (6) reasonable relocation expenses from Bermuda to the United States, together with (7) a gross up of any excise taxes payable by the Employee by reason of such payments occurring in connection with a Change of Control. The Employee shall not be entitled to any benefits or other entitlements under this Agreement, section unless a Change of Control actually occurs.
(c) A "Change of Control" of the Company shall be deemed to have taken place if occurred if, following consummation of the IPO (i) any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "groupperson" as such term is defined in Section 13(d)(33(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act of 19341934 (the "Exchange Act"), excluding the Company or any of its subsidiaries, a trustee or any fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to an offering of such securities or a corporation owned, directly or indirectly, by shareholders of the Company in substantially the same proportion as amendedtheir ownership of the Company, is or becomes the owner "beneficial owner" (as defined in rule 13d-3 under the Exchange Act), directly or beneficial owner indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's securitiesthen outstanding securities ("Voting Securities"); (ii) during any period of not more than two years, after individuals who constitute the date Board of Directors of the Company (the "Board") as of the beginning of the period and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i) or (iii) of this Agreementsentence) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at such time or whose election or nomination for election was previously so approved, having more cease for any reason to constitute a majority thereof; (iii) the shareholders of the Company approve a merger, consolidation or reorganization or a court of competent jurisdiction approves a scheme of arrangement of the Company, other than 50a merger, consolidation, reorganization or scheme of arrangement which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 40% of the combined voting power of the then outstanding securities Voting Securities of the Company that may be cast for the election of directors of the Company or such
(other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the d) The provisions of this Section 8 by subsequent written agreement 12 shall only apply following the consummation of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the ExecutiveIPO.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD)
Change of Control. (a) For If, following the purposes of this AgreementEffective Date, a "Change of Control occurs and, within twelve (12) months following the consummation of such Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" the Executive terminates his employment “for cause” (as defined in Section 13(d)(36.2(a)) of or his employment is terminated for any other reason (other than by the Securities Exchange Act of 1934Company “for cause” under Section 6.1 or a non-renewal by the Company under Section 6.3), as amended, becomes then the owner Company (or beneficial owner of its successor if applicable) shall pay and provide to Executive the Company's securities, after Severance Package commencing from the date of this Agreementdelivery of notice of termination, having more than 50% of subject to the combined voting power of conditions and limitations applicable to the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Severance Package set forth in Section 8 by subsequent written agreement of the Executive6.2(b); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company shall pay and deliver to Executive hereby agree that if all accrued base salary (not including any Bonus or AIP awards), accrued vacation pay or other Paid Time Off, expenses, benefits, and vested stock options, through and upon the effective date of termination under this Section 6.5, irrespective of whether Executive signs and/or delivers the Severance Agreement. Within sixty (60) days following the effective date of termination, the Board or Compensation Committee shall evaluate whether the Executive is entitled to receive a Bonus or AIP award for the partial year served by the Executive based on the performance criteria provided for in the employ applicable Bonus or AIP program, and shall exercise its reasonable discretion in applying such performance criteria to the Executive’s partial year performance. Restricted stock, options or other equity grants which have not vested by the date of termination shall continue to vest through the period that severance is paid.
(c) For purposes of this Employment Agreement, the term “Change of Control” shall mean the occurrence of any of the following events: (i) any sale or exchange of the capital stock of the Company in one transaction or a series of related transactions where more than fifty percent (50%) of the outstanding voting power of the Company is acquired by a person or entity or group of related persons or entities that was not the holder of at least fifty percent (50%) of the outstanding voting securities of the Company on the date on which Effective Date, provided, however, that the sale of securities by the Company to bona fide investors in one transaction or series of related transactions intended primarily to raise capital for the Company shall not be deemed a Change of Control occurs hereunder; (the "Change of Control Date")ii) any reorganization, the Company will continue to employ the Executive and the Executive will remain in the employ consolidation or merger of the Company for where the period commencing on the Change of Control Date and ending on the expiration outstanding voting securities of the Term, to exercise such authority and perform such executive duties as Company immediately before the transaction represent or are commensurate with converted into less than fifty percent (50%) of the authority being exercised and duties being performed by outstanding voting power of the Executive surviving entity (or its parent corporation) immediately prior to after the Change transaction; (iii) the consummation of Control Date. If after a Change transaction or series of Control, the Executive is requested, and, related transactions that results in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and all or substantially all of the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies assets of the Company and to a non-affiliate of the Executive voluntarily terminates employment within sixty Company; or (60iv) days the change in membership of any such occurrence, or more than fifty percent (50%) of the last directors of the Company in a series one year period, not counting the election or appointment of occurrences, then the Executive shall be entitled to receive, subject new directors whose nomination for election or appointment to the provisions of subparagraphs (e) and (f) below, Board is recommended or approved by a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment majority vote of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearBoard.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Employment Agreement (Integrated Healthcare Holdings Inc), Employment Agreement (Integrated Healthcare Holdings Inc), Employment Agreement (Integrated Healthcare Holdings Inc)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇", collectively or immediately, including a "group" is defined as defined either (i) an event in Section 13(d)(3) which individuals who constitute Employer's board of directors as of the Securities Exchange Act effective date of 1934this Agreement (the "Incumbent Board") cease for any reason not to constitute at least a majority of Employer's board of directors; provided, as amendedhowever, becomes the owner or beneficial owner of the Company's securities, after that any individual becoming a director subsequent to the date of this AgreementAgreement whose election, having more than 50% or nomination for election by Employer's stockholders, was approved by a vote of at least a majority of the combined voting power directors then comprising the Incumbent Board shall be considered as though such individual were a member of the then outstanding securities Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of the Company that may be cast for the election of directors of the Company (other than office occurs as a result of an issuance actual or threatened election contest with respect to the election or removal of securities specifically approved directors or other actual or threatened solicitation of proxies or consents by Executive or on behalf of a person other than Employer's board of directors; or (ii) Employee's loss of or material reduction in compensation, or managerial scope and specifically excluded from the provisions control of this Section 8 by subsequent written agreement of the Executive)Employer; provided, however, that a Change termination of Control Employee pursuant to Sections 3(D), 6 or 7 of this Agreement shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which considered a Change of Control occurs (the "Change in Control" for purposes of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will clauses (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under this Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d3(C), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change of Control as defined in Control(i) above, notwithstanding any vesting provisions, all stock options granted to Employee shall immediately vest, and additional stock options (with an exercise price equal to the Company will allow prevailing market price of Employer's stock on the Executive effective date of the change of control, and with an expiration date that is ten years from the effective date of the change of control) equal to participate 2% of Employer's then outstanding shares shall be immediately granted to Employee and shall begin vesting on a schedule substantially similar to that applied to stock options granted to other employees of Employer. In the event of a Change of Control as defined in (ii) above, notwithstanding any vesting provisions, all meetings stock options granted to Employee shall immediately vest, additional stock options (with an exercise price equal to the prevailing market price of Employer's stock on the effective date of the change of control, and negotiations related theretowith an expiration date that is ten years from the effective date of the change of control) equal to 2% of Employer's then outstanding shares shall be immediately granted to Employee and be fully vested, and Employer shall immediately pay to Employee cash compensation equal to the greater of (a) Employee's Base Salary multiplied by three (3); or (b) Employee's Base Salary multiplied by the number of years (including fractions of a year) remaining under this Agreement.
Appears in 3 contracts
Sources: Employment Agreement (Sutter Holding Co Inc), Employment Agreement (Sutter Holding Co Inc), Employment Agreement (Sutter Holding Co Inc)
Change of Control. (a) For Notwithstanding Section 6 above, the purposes following provisions shall apply to the Awards in the event of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change end of Control Date. If after the Performance Period:
(a) In the event of a Change of Control, the Executive is requestedsurviving or successor entity (or its parent corporation) may continue, and, in his sole and absolute discretion, consents to change his principal business location, assume or replace the Company will reimburse PSUs outstanding as of the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale Date of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Dateon substantially the same terms and conditions (with such adjustments as may be required or permitted by Section 4.6 of the Plan), and such PSUs or replacements therefor shall remain outstanding and be governed by their respective terms, subject to Sections 8 (c) and (d) below.
(b) If and to the extent that the outstanding PSUs are not continued, assumed or replaced in connection with a Change of Control, then all unvested PSUs will become immediately vested and non-forfeitable and payable at the actual performance, determined on the closing date for the Change of Control.
(c) During If and to the remaining Term extent that the Awards (i) are not continued, assumed or replaced in connection with a Change of Control, or (ii) are (x) continued, assumed or replaced under the circumstances described in Section 8(a) above, and (y) if within two years after the Change of Control Datethe Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason, then all unvested PSUs shall be earned and payable at the Company will (i) continue to honor the terms target level of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)performance.
(d) If Notwithstanding whether the Awards are continued, assumed or replaced in connection with a Change of Control, if the Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason during the remaining Term period beginning on the date an agreement is entered into by the Company with respect to a merger, consolidation or after similar transaction of the Company, which would constitute a Change of Control, and the effective time of such merger, consolidation or similar transaction of the Company, then a pro rata portion of the PSUs shall be earned and payable at the target level of performance. The fraction (subject to a maximum of one (1)) to be used to determine the pro rata vesting level for the PSUs shall have a numerator equal to the number of fiscal months elapsed between Award Date and the date of the Change of Control Date (i) rounded up to the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereofnearest whole month), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days denominator of any such occurrence, or the last in a series of occurrences, then the Executive which shall be entitled to receive, subject to the provisions of subparagraphs thirty-six (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof36).
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment following definitions shall apply for purposes of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.this Section 8:
Appears in 3 contracts
Sources: Long Term Performance Based Restricted Stock Unit Award Agreement (Methode Electronics Inc), Long Term Performance Based Restricted Stock Unit Award Agreement (Methode Electronics Inc), Long Term Performance Based Restricted Stock Unit Award Agreement (Methode Electronics Inc)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which If a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated Corporation shall immediately deliver to the Trustee, with a copy to each Participant or Beneficiary, a written notice to that effect authorized by the Company other than for cause (as defined in Section 5 hereof)Committee and signed by two officers of the Corporation, or (ii) there a Participant or Beneficiary, may, with a copy to the Corporation, notify the Trustee in writing to that effect. The Trustee may conclusively rely on any such notification from the Corporation. If the Trustee receives such notification from a Participant or Beneficiary and not from the Corporation, the Trustee shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in immediately notify the business objectives or policies of the Company Corporation and the Executive voluntarily terminates employment Board thereof. If the Corporation does not within sixty fifteen (6015) business days after receipt of any such occurrence, or notification from the last in a series of occurrences, then the Executive shall be entitled to receive, subject Trustee deliver to the provisions of subparagraphs (e) and (f) belowTrustee written objection thereto, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced deemed to have occurred for purposes of this Agreement; if the extent necessary so Trustee timely receives such written objection from the Corporation, the Trustee shall forthwith, in its sole discretion, determine whether a Change of Control has occurred, and if the Trustee determines that such amountsa Change of Control has occurred, when added a Change of Control shall be deemed to such lump-sumhave occurred for purposes of this Agreement; and during the period in which the Trustee is determining whether a Change of Control has occurred, do not exceed 299% the Trustee shall administer this Agreement as though a Change of Control had occurred, except that the Trustee shall make no payments to Participants and Beneficiaries from the Trust other than as provided in Section 5(c) of this Agreement. The determination of the Executive's Base Salary (as computed Trustee upon any such objection shall be final and binding for purposes of this Agreement. In making such determination, the Trustee may in its sole discretion consult with independent legal counsel and shall incur no liability for acting or refraining from acting in accordance with provisions the advice of such counsel. Except as otherwise provided in this Section 4, the Internal Revenue Code of 1986, Trustee shall have no independent obligation to make a determination as amended and any regulations promulgated thereunder) for determining whether to the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event occurrence of a proposed Change in of Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Trust Agreement (Brush Engineered Materials Inc), Trust Agreement (Brush Wellman Inc), Trust Agreement (Brush Engineered Materials Inc)
Change of Control. (a) Upon a Change of Control (as defined below), the Executive may terminate the Term upon notice to the Company, effective as set forth in such notice if at any time, within twenty-four (24) months following the date of a Change of Control, any other event constituting Good Reason hereunder continues for more than ten (10) days after the Executive delivers notice thereof to the Company. The failure of Executive to exercise his rights hereunder following an event constituting a Change of Control shall not preclude Executive from exercising such rights following the occurrence of a subsequent Change of Control event, even if related to a prior Change of Control Event.
(b) Upon (i) the execution of a definitive agreement (including, without limitation, any "lock-up" or voting agreement with any of the Company's principal stockholders) which contemplates a transaction, or (ii) the commencement of any tender or exchange offer or similar transaction for or involving the Company's securities, which, in the case of any transaction of the type described by clause (i) or (ii), if consummated, could result in a Change of Control, all restricted stock, stock option and performance share awards made to the Executive shall become automatically fully vested and exercisable in order to provide the Executive with a reasonable time period to enable the Executive to obtain the economic benefit of the contemplated transaction with respect to all restricted stock, stock option and performance share awards then held by him. Such restricted stock options and performance share awards shall become automatically exercisable and shall remain exercisable through their original terms with all rights; provided, however, in the event the transaction contemplated by the definitive agreement referred to above is not consummated and such definitive agreement is terminated, all accelerated restricted stock, stock options and awards shall be deemed restored to the vesting schedules in effect at the time of execution of such definitive agreement.
(c) For the purposes of this Agreement, a the term "Change of Control" shall be deemed to have taken place if mean the happening of any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.following:
Appears in 3 contracts
Sources: Employment Agreement (Genesis Health Ventures Inc /Pa), Employment Agreement (Genesis Health Ventures Inc /Pa), Employment Agreement (Genesis Health Ventures Inc /Pa)
Change of Control. (a) For In the purposes event of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed of GW pursuant to have occurred if the person who becomes the owner which control of more that 50% of the combined voting power of the Company GW is the Executive or an entity (or entities) controlled acquired by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")Person who, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will either (i) continue to honor at the terms time of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment acquisition is terminated by the Company other than for cause (as defined in Section 5 hereof)a Novartis Competitor, or (ii) there shall have occurred who subsequently becomes a material reduction in Executive's compensation Novartis Competitor, Novartis may (once such third Person acquirer meet the conditions for a Novartis Competitor) provide written notice to GW (or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60its successor entity) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to terminating the provisions of subparagraphs Article 3 and upon such notice, Novartis will not be obligated under Article 3 for the remainder of the Term. Without limiting the foregoing and notwithstanding any other provision of this Agreement, in the event that Novartis exercises such right to terminate the provisions of Article 3: (ea) Novartis shall have no obligation to share Commercialization Plans with GW (or its successor entity), but by no later than 1st March each Calendar Year Novartis shall provide GW with (i) a written narrative report detailing, for the foregoing calendar year, (A) the Regulatory Filings made and the Regulatory Approvals obtained in the Territory, (B) the countries in which the Product was Launched, (C) a list of the countries in the Territory where a Competitive Product has been launched, (D) copies of the promotional, advertising and/or marketing materials provided by Novartis to Third Party health care professionals in the Territory in the previous calendar year (in English and in the local language where this is different to English and Novartis has used such local language versions); and (fb) belowwithin thirty (30) days following the end of each Calendar Quarter, GW (or its successor entity) will provide a lump-sum payment equal written report to 299% Novartis detailing: (i) all Development activities with respect to the Products outside the Territory, including any planned or ongoing Development activities of Executive's current Base Salary in addition to any GW, its Affiliates or other compensation that licensees outside the Territory, the conduct of which may be due necessary or useful for obtaining or maintaining Regulatory Approvals for the Product (including obtaining or maintaining Regulatory Approvals for new indications) in the Territory; and owing (ii) any material issues which may affect GW’s ability to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided supply Novartis with its requirements for in paragraph (d), upon BDP or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary finished Product (as computed in accordance with provisions of applicable) under the Internal Revenue Code of 1986, as amended Manufacturing and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearSupply Agreement.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Distribution and License Agreement (Gw Pharmaceuticals PLC), Distribution and License Agreement (Gw Pharmaceuticals PLC), Distribution and License Agreement (Gw Pharmaceuticals PLC)
Change of Control. If, within twelve (12) months following a Change of Control: (a) For the purposes Executive terminates his employment for Cause; or (b) the Employer terminates Executive’s employment without Cause, the Executive, or in the event of this Agreementhis subsequent death, his designated beneficiaries or his estate, as the case may be, shall receive, as liquidated damages, in lieu of all other claims, a "Change of Control" shall be deemed lump sum severance payment equal to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇one (1) times the Executive’s then current Base Salary, collectively or immediately, including a "group" as defined in Section 13(d)(3) of plus the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement average of the Executive); provided, however, that a Change ’s annual bonuses paid pursuant to Section 4.2 of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company this Agreement for the period commencing on three calendar years immediately preceding the effective date of the Change of Control Date and ending (with any such calendar year(s) for which no annual bonus was paid being included in such calculation as a zero dollar amount), plus any amounts not yet paid under Section 4.4. The lump sum amount so calculated shall be paid in full on the expiration last day of the Termmonth following the date of termination. In no event shall the payment described in this Section 3.3 exceed the amount permitted by Section 280G of the Code. Therefore, to exercise such authority and perform such executive duties if the aggregate present value (determined as are commensurate with of the authority being exercised and duties being performed by the Executive immediately prior to date of the Change of Control Date. If after a Change in accordance with the provisions of Control, Section 280G of the Code) of both the severance payment and all other payments to the Executive is requested, and, in his sole and absolute discretion, consents to the nature of compensation which are contingent on a change his principal business location, in ownership or effective control of the Company will reimburse Employer or in the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase ownership of a replacement residence at substantial portion of the changed locationassets of the Employer (the “Aggregate Severance”) would result in a “parachute payment,” as defined under Section 280G of the Code, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If then the Executive Aggregate Severance shall not consent be greater than an amount equal to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office 2.99 multiplied by Executive’s “base amount” for the Executive at that location commensurate with “base period, “ as those terms are defined under Section 280G of the Company's office prior to Code. In the Change of Control Date.
(c) During event the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be Aggregate Severance is required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in be reduced pursuant to this Section 5 hereof)3.3, or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receivedetermine which portions of the Aggregate Severance are to be reduced so that the Aggregate Severance satisfies the limit set forth in the preceding sentence. Notwithstanding any provision in this Agreement, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to if the Executive may exercise his right to terminate employment under this Section 3 hereof.
(e) The amounts payable to 3.3, the Executive under any other compensation arrangement maintained by the Company may choose which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), provision shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearapplicable.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 3 contracts
Sources: Employment Agreement (Buckhead Community Bancorp Inc), Merger Agreement (Buckhead Community Bancorp Inc), Employment Agreement (Buckhead Community Bancorp Inc)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause coincident with or within one year after a Change of Control (as defined in Section 5 hereofbelow), either by the company or by Executive for Good Reason, Executive shall be paid, within 10 days after such termination, a lump sum, in cash, equal to (i) 24 months' base salary as then in effect, plus (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change two times any bonus earned by Executive in the business objectives or policies Fiscal Year preceding the date of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrencetermination. In addition, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject any amounts to which Executive may be entitled pursuant to the provisions plans, policies and practices of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary the Company then in addition to any other compensation that may be due and owing effect. Anything to the Executive under contrary herein notwithstanding, if any payment pursuant to this Section 3 hereof.
(e16(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code as defined in section 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether amended, such payment shall be limited to the Executive has received an excess largest portion of such payment as can be paid without being deemed a "parachute payment." Except as provided in this paragraph 16(e), upon a termination of employment pursuant to this paragraph, all other benefits under this Agreement (except indemnification under Section 19) shall lapse, expire and be forfeited. Any such excess amount shall be deferred and paid in the next tax year.
For purposes of this Section l6 (f) In the event of e), a proposed "Change in Control" shall be deemed to have occurred if (1) any Person (as such term is used in Section 13 (d)of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company will allow representing fifty percent (50%) or more of the Executive combined voting power of the Company's then outstanding securities; or (2) during any period of two consecutive years, individuals who at the beginning of such period constitute the members of the Company's Board of Directors (the "Board") and any new director, whose election to participate the board or nomination for election to the Board by the Company's stockholders was approved by a vote of a majority of the directors then still in all meetings and negotiations related thereto.office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute
Appears in 2 contracts
Sources: Employment Agreement (Loehmanns Holdings Inc), Employment Agreement (Loehmanns Holdings Inc)
Change of Control. (a) For In the purposes event any person, persons or entity commences a tender or exchange offer, or circulates a proxy to the shareholders of this Agreement, a "Change of Control" shall be deemed ANBC designed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that effect a Change of Control shall (as hereinafter defined), Executive agrees that he will not be deemed voluntarily leave his employment with ANTIM and will continue to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive perform his regular duties, until such person, persons or an entity (has abandoned or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which terminated its efforts to effect a Change of Control occurs (Control. In the "Change of Control Date")event any person, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Termpersons or entity successfully concludes a tender or exchange offer, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior or has successfully circulated a proxy to the Change shareholders of Control Date. If after ANBC effecting a Change of Control, the Executive is requested, and, in agrees that he will not voluntarily leave his sole employment with ANTIM and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in perform his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receiveregular duties, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under this Section 3 hereof9.4.
(ea) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on If a Change of Control occurs and within a twenty-four (24) month period thereafter an Unreasonable Change occurs to Executive's employment relationship, Executive shall be entitled to resign with justification, and would shall be considered entitled to the benefits provided in Section 9.4(b). If Executive invokes the rights pertaining to resignation with justification, Executive's notice of resignation shall state that Executive's resignation is in the best interests of ANTIM considering the circumstances of the Change of Control and Unreasonable Change, and that it is not his intent to resign for the sole purpose of collecting compensation without working for it.
(b) If, within twenty-four (24) months of a "parachute payment" under Internal Revenue Code 280G and regulations thereunderChange of Control, ANTIM shall terminate Executive's employment other than for death, Disability, Retirement or Cause, or if Executive shall resign in accordance with Section 9.4(a), shall be reduced to ANTIM shall:
(1) pay Executive his Base Salary after the extent necessary so that Change of Control through the Date of Termination plus the aggregate amount of any bonus accrued but unpaid as of such amountsDate of Termination; and,
(2) pay Executive an amount in cash which, when added to such lump-sumthe present value of all other compensation, do not exceed 299% of benefits and payments required to be included in the Executive's Base Salary (as computed in accordance with provisions calculation under Section 280G of the Internal Revenue Code of 1986, as amended amended, (the "Code") and regulations thereunder, shall equal 299% of the "base amount" as defined under Section 280G of the Code. "Base amount" shall, however, include only Executive's Base Salary and shall exclude any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute paymentincentive compensation. Any such excess Such amount shall be deferred and payable in equal installments over thirty-six (36) months from the Date of Termination at the same frequencies as salaries paid in to other salaried employees of ANTIM; provided, however, if Executive obtains employment, ANTIM's obligation to pay such amount over thirty-six (36) months shall continue but shall be reduced to that amount necessary which, when added to Executive's salary from his new employment, will maintain Executive at the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.equal monthly installment amount payable by ANTIM described above; and,
Appears in 2 contracts
Sources: Employment and Noncompetition Agreement (Anb Corp), Employment Agreement (Anb Corp)
Change of Control. (ai) For In the purposes of this Agreement, event that the Company enters into a "binding contract for a Change of Control" shall be deemed Control transaction during the Term of Employment and Employee is employed in good standing as of such date, then, if Employee has complied with the requirements of clause (ii) below and Employee: (x) has not been terminated for Cause or resigned prior to have taken place the Closing Date; or (y) if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" the Election (as defined in Section 13(d)(3clause (ii) below) has occurred, Employee has not been terminated for Cause or resigned prior to the expiration of the Securities Exchange Act Transition Period, then Employee shall be paid a lump-sum bonus of 1934$505,000 (the “Change of Control Payment”), subject to and in accordance with Section 5(b) below.
(ii) Employee acknowledges and agrees that, in the event of a Change of Control as amended, becomes the owner or beneficial owner a result of: (x) an acquisition of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities equity of the Company that may be cast for or its direct or indirect parent (whether by sale of equity interests, merger or otherwise), then this Agreement will remain the election of directors obligation of the Company (other than as or its successor) and Employee’s obligations hereunder will remain in full force and effect; or (y) a result transfer of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement assets of the Executive); providedCompany or its subsidiaries and in connection therewith this Agreement is assigned by the Company, howeverthen this Agreement will become the obligation of the assignee and Employee’s obligations hereunder will (as such) remain in full force and effect. If, that prior to the Closing Date, the Company so elects (the “Election”) by giving written notice thereof to Employee, then Employee shall provide, on a full time basis and in a professional manner, during the Transition Period, such services to the Company, the acquiring Person in such Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs transaction (the "Change of Control Date"), the Company will continue to employ the Executive “Acquiring Person”) and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties their respective designees as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior necessary in all respects to the Change permit a smooth, professional transition of Control Date. If after a Change of Controlmanagement (which may include, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue continuing to provide the services required of him hereunder specified in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and Agreement or such other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions executive services as may be required specified from time to maintain such plans in compliance with applicable federal law regulating employee benefitstime by the Company, the Acquiring Person or their respective designees).
(diii) If during It is understood and agreed that: (aa) if Employee becomes, directly or indirectly, an employee of the remaining Term on or after the Change Acquiring Person, then all of Control Date (i) the Executive's employment is terminated Employee’s salary, benefits and other compensation shall be paid by the Company other than Acquiring Person; and (bb) if Employee has entered into a new employment agreement with the Acquiring Person then the term “Cause” shall be deemed for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies purposes of the Company and foregoing provision to have the Executive voluntarily terminates meaning given such term in such new employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofagreement.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (American Casino & Entertainment Properties LLC), Employment Agreement (American Casino & Entertainment Properties LLC)
Change of Control. (a) For the purposes of this AgreementWarrant, a "“Change of Control" shall be deemed ” means a change in the ownership or control of the Company effected through any of the following transactions: (A) a merger, consolidation or reorganization approved by the Company’s stockholders, unless securities representing more than 50% of the total combined voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly and in substantially the same proportion, by the persons who beneficially owned Company’s outstanding voting securities immediately prior to have taken place if such transaction; (B) any stockholder-approved sale, transfer or other disposition of all or substantially all of the Company’s assets; or (C) the acquisition, directly or indirectly, by any person or related group of persons (other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇the Company or a person that directly or indirectly controls, collectively is controlled by or immediatelyis under common control with, including a "group" as defined in Section 13(d)(3the Company) of beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner ) of the Company's securities, after the date of this Agreement, having securities possessing more than 50% of the total combined voting power of the then Company’s outstanding securities of pursuant to a tender or exchange offer made directly to the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that Company’s stockholders. If a Change of Control shall not be deemed proposed or be effected in such a way that holders of Warrant Stock shall be entitled to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive receive shares, securities, cash or an entity (other property with respect to or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")exchange for Warrant Stock, then, the Company will continue shall use all reasonable commercial efforts to employ procure that upon the Executive and the Executive will remain in the employ consummation of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, lawful and adequate provision shall be made whereby the Executive is requestedHolder shall have the right to acquire and receive upon exercise of this Warrant (or at the option of the Holder, andshall have the right to receive a new and equivalent Warrant for) such shares, securities, cash or other property issuable or payable as part of such Change of Control with respect to or in his sole and absolute discretion, consents to change his principal business location, exchange for such number of outstanding shares of Warrant Stock as would have been received upon exercise of this Warrant at the Exercise Price then in effect. If after the exercise of such efforts the Company will reimburse is unable to procure the Executive for his relocation expensesforegoing, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and then the Company shall continue to maintain an office purchase this Warrant for cash for its fair market value as determined using the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of Black-Scholes valuation methodology. Payment for this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may Warrant shall be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated made by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in contemporaneously with the business objectives or policies closing of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearControl.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Loan Modification Agreement (Comverge, Inc.), Warrant Agreement (Comverge, Inc.)
Change of Control. (aExcept under those circumstances described under Sections 8.3(b) For the purposes of this Agreementthrough 8.3(g), a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securitiesif, after the date Effective Date, a person or entity acquires AT&T or Vonage and the acquired Party continues to exist as a separate legal entity, this Agreement shall remain in effect and the acquired Party shall continue to retain the benefits and obligations of this Agreementthe licenses, having covenants and releases set forth herein, as the case may be, but only to the extent the assets of the acquired Party are being used for no more than 50% the number of end user customers of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive acquired Party existing immediately prior to the Change of Control Date. If after acquisition date, adjusted annually thereafter at a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence per annum rate equivalent to the changed location, closing costs, if any, associated with the sale of his rolling 12 month average per annum growth rate existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office immediately prior to the Change of Control Date.
(cacquisition date, but in no event less than 0% growth rate. Except under those circumstances described under Sections 8.3(b) During the remaining Term through 8.3(g), if, after the Change of Control Effective Date, a person or entity acquires AT&T or Vonage and the Company will (i) acquired Party does not continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits exist as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefitsseparate legal entity, or a material person or entity acquires the business activities of a Party covered under the licenses, covenants and releases set forth herein, this Agreement shall continue in full force and effect and the acquirer shall succeed to the rights and obligations of the acquired Party or the Party previously owning the covered business, as the case may be, but only to the extent the acquired assets are being used for no more than the number of end user customers of the acquired Party or business, respectively, existing immediately prior to the acquisition date, adjusted annually thereafter at a per annum rate equivalent to the rolling 12 month average per annum growth rate immediately prior to the acquisition date, but in no event less than 0% growth rate. The foregoing change in Executive's status, working conditions or management responsibilities, or a material change of control provisions are conditioned upon the Party involved in the business objectives or policies acquisition notifying the other Party in writing of the Company and the Executive voluntarily terminates employment such an acquisition event within sixty (60) days of it occurring and ensuring that the acquirer negotiates with the other Party in good faith within a period of twelve (12) months following the acquisition in order to provide payment for and receive any such occurrencelicenses, covenants or releases under the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) patents owned and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained licensed by the Company which became payable after payment other Party hereunder for those end user customers in excess of the lump-sum provided for in paragraph (d), upon or as number of end user customers not otherwise covered by a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced license pursuant to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearthis Agreement.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Settlement and Patent License Agreement, Settlement and Patent License Agreement (Vonage Holdings Corp)
Change of Control. (a) For Notwithstanding Sections 5 above, the purposes following provisions shall apply to the Award in the event of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed prior to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.RSU’s Vesting Date:
(ba) The Company and Executive hereby agree that if Executive is in In the employ event of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requestedsurviving or successor entity (or its parent corporation) may continue, and, in his sole and absolute discretion, consents to change his principal business location, assume or replace the Company will reimburse RSUs outstanding as of the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale date of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Dateon substantially the same terms and conditions (with such adjustments as may be required or permitted by Section 4.6 of the Plan), and such RSUs or replacements therefor shall remain outstanding and be governed by their respective terms, subject to Sections 7(c) and (d) below.
(b) If and to the extent that the outstanding RSUs are not continued, assumed or replaced in connection with a Change of Control, then all unvested RSUs will become immediately vested and non-forfeitable and settled as of the closing date for the Change of Control. Payment shall be made in shares of the Company’s Common Stock or such other consideration as may be provided to the Company’s stockholders in connection with such Change of Control.
(c) During If and to the remaining Term extent that the RSUs are continued, assumed or replaced under the circumstances described in Section 7(a) above, and if within two years after the Change of Control DateGrantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason, then all unvested RSUs will become immediately vested and non-forfeitable and settled as of the Company will (i) continue to honor the terms date of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change termination of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)employment.
(d) If Notwithstanding whether an Award is continued, assumed or replaced in connection with a Change of Control, if Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason during the remaining Term period beginning on the date an agreement is entered into by the Company with respect to a merger, consolidation or after similar transaction of the Company, which would constitute a Change of Control, and the effective time of such merger, consolidation or similar transaction of the Company, then all unvested RSUs will become immediately vested and non-forfeitable and settled as of the date of the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofControl.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by following definitions shall apply for purposes of this Section 7:
(1) Unless otherwise provided in a separate change in control agreement between the Company which became payable after payment of the lump-sum provided for and Grantee (a “Change in paragraph (dControl Agreement”), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.term “
Appears in 2 contracts
Sources: Restricted Stock Unit Award Agreement (Methode Electronics Inc), Restricted Stock Unit Award Agreement (Methode Electronics Inc)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that If there is a Change of Control of Inovio, then Inovio shall provide written notice to MedImmune at least [XXXXXXX] prior to completion of such Change of Control, subject to any confidentiality obligations of Inovio then in effect (but in any event shall notify MedImmune within [XXXXXXX] after completion of such Change of Control). The Change of Control Group in connection with such Change of Control shall agree in writing with MedImmune that it shall comply with the Exclusivity obligations under Section 2.3, above. The Change of Control Group in connection with such Change of Control shall agree in writing with MedImmune that it will not utilize any of MedImmune’s Know-How, Patent Rights, Inventions, Materials or Confidential Information or Joint Know-How, Joint Patent Rights or Collaboration IP (collectively, “Sensitive Information”) for the research, development or commercialization of any product for the treatment of any indication or patient population for which a Product may be deemed to have occurred if the person who becomes the owner of more that 50% developed or commercialized. Following consummation of the combined voting power Change of Control, MedImmune and the Company Change of Control Group shall adopt in writing reasonable procedures to prevent the disclosure of Sensitive Information beyond Inovio’s personnel who need to know the Sensitive Information solely for the purpose of fulfilling the Acquired Party’s obligations under this Agreement. If there is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (of Inovio then MedImmune may, in its sole discretion, cause Inovio to immediately cease any work under the "Change of Control Date")Research Plans. Upon any such cessation, the Company Inovio will continue immediately cease all activity, transfer to employ the Executive MedImmune all data developed by Inovio, and the Executive will remain reconcile actual FTE costs in the employ of quarter against the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed quarterly prepayment made by the Executive immediately prior to the Change of Control DateMedImmune. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
Within thirty (c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (6030) days of any such occurrencereconciliation, or Inovio will refund to MedImmune the last difference between the quarterly prepayment by MedImmune and Inovio actual FTE expenditures in a series of occurrencesthe quarter. All licenses granted by MedImmune to Inovio shall terminate, then except the Executive shall be entitled rights granted by MedImmune to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive Inovio under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d)2.3, upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder)above, shall be reduced survive. In addition, MedImmune shall have the right to suspend Inovio or its successor’s participation and rights under Article 3, and MedImmune shall have the extent necessary so that such amounts, when added right to such lump-sum, do not exceed 299% of make all decisions under the Executive's Base Salary (as computed in accordance Agreement unilaterally and without consultation with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearInovio or its successor.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Collaboration and License Agreement, Dna Cancer Vaccine Collaboration and License Agreement (Inovio Pharmaceuticals, Inc.)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if if: (i) any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediatelyperson, including a "group" as defined in Section 13(d)(313(d) (3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's Company securities, after the date of this Agreement, having more than 50% or more of the combined voting power of the then outstanding securities of the Company that may be cast case for the election of directors of the Company (other than as a result of an issuance of securities specifically initiated by the Company, or open market purchases approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement Board, as long as the majority of the Executive); providedBoard approving the purchases is the majority at the time the purchases are made, however, that a Change of Control shall not be deemed to have occurred if or (ii) the person persons who becomes the owner of more that 50% of the combined voting power were directors of the Company is before such transactions shall cease to constitute a majority of the Executive Board of the Company, or an entity (any successor to the Company, as the direct or entities) controlled by indirect result of, or in connection with, any cash tender or exchange offer, merger or other business combination, sales of assets or contested election, or any combination of the Executiveforegoing transactions.
(b) The Company and Executive the Employee hereby agree that that, if Executive Employee is in the employ of affiliated with the Company on the date on which a Change of Control occurs (the "Change of Control Date"), ) the Company (or, if Employee is affiliated with subsidiary) the subsidiary will continue to employ the Executive retain Employee and the Executive Employee will remain in the employ of affiliated with the Company (or subsidiary), for the period commencing on the Change of Control Date and ending on the expiration first anniversary of the Termsuch a date, to exercise such authority and perform such executive Employee duties as are commensurate with the authority being exercised and duties being performed by the Executive Employee immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term term hereof after the Change of Control Date, the Company (or subsidiary) will (i) continue to honor pay Employee a salary at not less than the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect level applicable to Employee on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)Date.
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Singing Machine Co Inc), Employment Agreement (Singing Machine Co Inc)
Change of Control. Notwithstanding any other provisions of this Agreement, Company agrees that in the event a Change of Control (as hereinafter defined) occurs and Employee leaves the employment of Company and the combined entity for whatever reason (other than (i) termination for Cause, (ii) death, (iii) permanent disability as described in Section 9 hereof or (iv) by Employee for any reason other than Good Reason):
(a) If the termination occurs within twelve months after a Change of Control, Company shall pay the Employee in a single lump sum within ten (10) days of the termination an amount equal to two (2) times the sum of (i) his annual Salary and (ii) the product of: (x) his annual Salary and (y) the highest bonus award percentage applicable to the Employee during the three years preceding the year in which the termination takes place. The six (6) month notice requirement prior to the effective date of termination pursuant to Sections 8(b) and 8(c) shall continue to be applicable following a Change of Control. To the extent the Company gives less than six (6) months notice (other than in the case of a termination for Cause), the Company shall pay the Employee his or her Salary for the amount of time by which the actual notice given is less than six (6) months.
(b) To the extent eligible, Employee shall continue to be covered by all noncash benefit plans of Company (including, but not limited to, the medical and dental plans and the special disability policy for officers), except for the retirement plans or retirement programs in which Employee participates or any successor plans or programs in effect on the date of a Change of Control, for 24 months thereafter; provided, however, that if during such time period Employee should enter into the employment of a competitor of Company, participation in such noncash benefit plans would cease. In the event Employee is ineligible under the terms of such plans to continue to be so covered, Company shall use its best efforts to provide substantially equivalent coverage through other sources. If Company is unable to provide substantially equivalent coverage through other sources, then Company shall pay in cash to Employee the amount Company would have had to expend to provide such coverage assuming standard risk.
(c) Employee’s payments received hereunder shall be considered severance pay in consideration of past service, and pay in consideration of continued service from June 3, 2002 and entitlement thereto shall not be governed by any duty to mitigate damages by seeking further employment nor offset by any compensation which may be received from future employment.
(d) The specific arrangements referred to above are not intended to exclude Employee’s participation in other benefits available to executive personnel generally or to preclude other compensation or benefits as may be authorized by the Board of Directors of the Company from time to time, or as a result of the Change of Control.
(e) This Section shall be binding upon and shall inure to the benefit of the respective successors, assigns, legal representatives and heirs to the parties hereto.
(f) For the purposes purpose of this Agreement, a "“Change of Control" ” shall be deemed mean: a merger, consolidation, or reorganization of Company with one or more other entities in which Company is not the surviving entity, a sale of substantially all of the assets of Company to have taken place if another entity, or any transaction (including, without limitation, a merger or reorganization in which Company is the surviving entity) that results in any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including entity (or persons or entities acting as a "group" as defined group or otherwise in Section 13(d)(3concert) of becoming the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having fifty percent (50%) or more than 50% of the combined voting power of the then outstanding all classes of securities of Company or obtaining (through stock ownership, proxies, or otherwise) the Company that may be cast for the election of directors right to elect a majority of the Company (other than as a result Board of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement Directors of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the ExecutiveCompany.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Executive Employment Agreement (Duratek Inc), Executive Employment Agreement (Duratek Inc)
Change of Control. In the event there is an Involuntary Termination (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3herein) of the Securities Exchange Act of 1934Executive's employment by the Bank, as amended, becomes the owner concurrently with or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company within twelve (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that 12) months following a Change of Control shall not be deemed (as defined herein), then SFBC shall:
(a) Pay to have occurred if the person who becomes Executive a lump sum cash amount, upon the owner of more that 50% later of the combined voting power date of such Change of Control or the effective date of the Company is Executive's termination of employment with the Executive or an entity Bank, equal to twenty-four (or entities24) controlled by months of the Executive.'s then current monthly base salary; and
(b) The Company Maintain and Executive hereby agree that if Executive is in provide for a period ending at the employ earlier of (i) eighteen (18) months after the effective date of the Company on Executive's termination ("Executive's Termination Date") or (ii) the date on which a Change of Control occurs (the "Change of Control Date")Executive's full time employment by another employer that provides substantially similar benefits, at no premium cost to the Executive, the Company will continue to employ same group health benefits and other group insurance and group retirement benefits as the Executive and would have received if the Executive will remain in had continued to be employed by the employ Bank, to the extent that the Bank can do so under the terms of applicable plans as are maintained by the Bank for the benefit of its executive officers from time to time; and
(c) In the event that the continued participation of the Company for Executive in any group insurance plan as provided in Section 3(b) would trigger the payment of an excise tax under Section 4980D of the Code, or during the period commencing on set forth in Section 3(b) any such group insurance plan is discontinued, then the Change of Control Date and ending on the expiration of the Term, Bank shall at its election either (i) arrange to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by provide the Executive with alternative benefits substantially similar to those which the Executive was entitled to receive under such group insurance plans immediately prior to the Change Executive's Termination Date, provided that the alternative benefits do not trigger the payment of Control Date. If after a Change an excise tax under Section 4980D of Controlthe Code, or (ii) pay to the Executive is requested, and, in his sole and absolute discretion, consents to change his principal within 20 business location, days following the Company will reimburse Executive's Termination Date (or within 20 business days following the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for discontinuation of the benefits if later) a time while arranging to move his residence lump sum cash amount equal to the changed locationprojected cost to the Bank of providing continued coverage to the Executive, closing costs, if any, associated with the sale of his existing residence and projected cost to be based on the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office costs being incurred immediately prior to the Change Executive's Termination Date (or the discontinuation of Control Date.the benefits if later), as increased by 10% each year; and
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue Any insurance premiums payable by the Bank or any successor pursuant to honor Sections 3(b) or 3(c) shall be payable at such times and in such amounts as if the terms Executive was still an employee of this Agreementthe Bank, including Base Salary and other compensation set forth subject to any increases in Section 3 hereofsuch amounts imposed by the insurance company or COBRA, with the Bank paying any employee portion of the premiums that the Executive would have been required to pay if he was still an employee of the Bank, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change amount of Control Date (but subject to such reductions as may be insurance premiums required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated be paid by the Company other than for cause (as defined Bank in Section 5 hereof), or (ii) there any taxable year shall have occurred a material reduction not affect the amount of insurance premiums required to be paid the Bank in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereoftaxable year.
(e) The amounts payable to the Executive under Notwithstanding any other compensation arrangement maintained by provision contained in this Agreement, if either (i) the Company which became payable after time period for making any cash payment under Section 3(c) commences in one calendar year and ends in the succeeding calendar year or (ii) in the event any payment under this Section 3 is made contingent upon the execution of a general release and the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so time period that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any to consider the terms of such excess amount shall be deferred general release (including any revocation period under such release) commences in one calendar year and paid ends in the next tax succeeding calendar year, then the payment shall not be paid until the succeeding calendar year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Change of Control Agreement (Sound Financial Bancorp, Inc.), Change of Control Agreement (Sound Financial Bancorp, Inc.)
Change of Control. (a) For The provisions of Section 6.1 and 6.2 hereof to the purposes contrary notwithstanding, if (i) Executive is terminated by the Company without Cause or Executive resigns for CoC Good Reason (defined below) in either case during the period commencing on a Change of this AgreementControl (defined below) and ending on the second anniversary of the Change of Control (such two-year period being the “Protection Period” hereunder), or (ii) Executive reasonably demonstrates that the Company’s termination of Executive’s employment (or event which, had it occurred following a "Change of Control" , would have constituted CoC Good Reason) prior to a Change of Control was at the request of a third party who was taking steps reasonably calculated to effect a Change of Control (or otherwise in contemplation of a Change of Control) and a Change of Control actually occurs, (each a “Qualifying Termination”), then Executive shall be deemed entitled to receive: (A) an amount in cash equal to the then-prevailing target amount of Executive’s Annual Bonus (“Target Bonus”) during the year of termination multiplied by a fraction, the numerator of which is the number of completed days (including the date of termination) during the year of termination and the denominator of which is 365, (B) an amount in cash equal to the sum of Executive’s annual Base Salary and annual Target Bonus, and (C) continuation of medical benefits until the first anniversary of the date of such termination upon the same terms as exist for Executive immediately prior to the termination date. Following any termination described in this Section 6.4, the Company shall continue to have taken place if all other rights available hereunder (including, without limitation, all rights under the Restrictive Covenants and any person other than ▇▇restrictive covenants set forth in any plan, award and agreement applicable to Executive, at law or in equity). ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined Subject to the Executive’s execution of the Release described in Section 13(d)(310.1, the amounts described in (A) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, and (B) shall be paid in a lump sum within ten (10) days after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control termination. Such amounts or benefits shall not be deemed subject to have occurred if the person who becomes the owner of more mitigation or offset, except that 50% of the combined voting power of the Company is the medical benefits may be offset by comparable benefits obtained by Executive or an entity (or entities) controlled by the Executivein connection with subsequent employment.
(b) The Anything set forth in any equity plan, equity award or any other provision of this Agreement between the Company and Executive hereby agree to the contrary notwithstanding, all of Executive’s outstanding equity grants that if Executive is in were awarded at or prior to the employ time of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on shall fully vest upon the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase occurrence of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control DateQualifying Termination.
(c) During The compensation and benefits described in Section 6.4(a) and 6.4(b) shall be in lieu of compensation and benefits provided otherwise for a termination under Section 6.2 of this Agreement and any other plan or agreement of the remaining Term Company, whether adopted before or after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 date hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee which provides severance payments or benefits).
(d) If during the remaining Term on it is determined that any amount, right or after the Change of Control Date benefit paid or payable (ior otherwise provided or to be provided) the Executive's employment is terminated to Executive by the Company or any of its affiliates under this Agreement or any other than for cause plan, program or arrangement under which Executive participates or is a party (as defined in Section 5 hereofcollectively, the “Payments”), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "constitute an “excess parachute payment" under Internal Revenue Code ” within the meaning of Section 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether from time to time (the “Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), then the amount of the Payments payable to the Executive has received an excess parachute payment. Any such excess amount under this Agreement shall be deferred reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. All determinations required to be made under this Section 6.4(d) and paid the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the next tax yearevent a Reduction is required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of Section 6.4(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction is necessary. All fees and expenses of the Auditor shall be paid by the Company. All determinations made by the Auditor shall be binding upon the Company and the Executive.
(fe) In For purposes of this Section 6.4 (and distinguished from a “Qualified Change of Control” provided under certain other circumstances under the event of a proposed Change in ControlAgreement), the Company will allow term “Change of Control” shall be deemed to have occurred upon the Executive first to participate occur of any event set forth in all meetings and negotiations related thereto.any one of the following paragraphs of this Section 6.4(e):
Appears in 2 contracts
Sources: Senior Management Agreement (Huron Consulting Group Inc.), Senior Management Agreement (Huron Consulting Group Inc.)
Change of Control. (aA) Provided the Executive has relocated to Southern California prior to the effective date of a Change in Control, if the acquirer in the Change in Control does not adopt the Executive’s option grant under the Plan in accordance with 26 C.F.R. 1.424-1 or offer the Executive a substitute grant under the acquirer’s plan having similar economic value to the Executive’s option grant under the Plan, any options granted to the Executive under the Plan that would not otherwise be vested on the effective date of the Change in Control shall immediately vest and be exercisable immediately prior to the effective date of the Change in Control.
(B) Provided the Executive has relocated to Southern California before the effective date of a Change in Control, if the acquirer in the Change in Control adopts the Executive’s option grant under the Plan in accordance with 26 C.F.R. 1.424-1, or offers the Executive a substitute grant under the acquirer’s stock option plan having similar economic value to the Executive’s option grant under the Plan, and (1) within six (6) months following the effective date of the Change in Control the acquirer terminates the Executive’s employment without Cause, or (2) if within twelve (12) months of the Effective Date and within six (6) months of the effective date of the Change in Control if the acquirer terminates the Executive with or without cause, then to the extent that twenty-five percent (25%) or more of the Executive’s total granted options remain unvested on the date his employment terminates, twenty-five percent (25%) of the Executive’s total granted options from the acquirer (by adoption or grant) shall immediately vest and be exercisable. For the avoidance of doubt, if the acquirer does not agree to include this right in its substitute grant to the Executive, the Executive’s option grant under the Plan shall be treated as under Section 4(c)(iv)(A) above.
(C) If the Executive has not relocated to Southern California prior to the effective date of the Change in Control, the Executive shall not be entitled to any acceleration in the vesting of his options under the Plan in connection with the Change in Control.
(D) For the purposes of this Agreement, a "“Change of in Control" ” shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" defined as defined in Section 13(d)(3(1) the acquisition of the Securities Exchange Act Company by another entity by means of 1934a transaction or series of related transactions (including, as amendedwithout limitation, becomes any reorganization, merger, stock purchase or consolidation) or (2) the owner sale, transfer or beneficial owner other disposition of all or substantially all of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive’s assets.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Xcorporeal, Inc.), Employment Agreement (Xcorporeal, Inc.)
Change of Control. (aA) For the purposes of this Agreement, a "Any direct or indirect Change of Control" Control of Seller, whether voluntary or by operation of law, shall require the prior written consent of Company, which shall not be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)unreasonably withheld; provided, however, that no Company approval of a Change in Control shall be required if, in Company’s reasonable judgment, (i) any security that Seller has provided to Company would remain in effect and unchanged after the Change in Control, (ii) Seller’s (or Seller Parent Guarantor) creditworthiness would not be adversely affected by the Change in Control, and (iii) Seller will have the same, or improved, ability to operate and maintain the Facility after the Change in Control; provided, further however, that in no circumstance does Company have the obligation to consent to any Change of Control prior to the issuance and expiration of the PFT Notice. Notwithstanding the foregoing, any change by Seller resulting from (i) transactions among Affiliates of Seller, (ii) any exercise by the Unaffiliated Facility Investor of its rights and remedies under the Unaffiliated Investment Documents, (iii) the sale of equity interests in Seller to tax equity investors pursuant to the terms of the Unaffiliated Investment Documents, (iv) a transaction which creates one or more intermediate holding companies or that does not affect the ultimate upstream equity ownership of Seller, (v) a sale, assignment, pledge or other transfer of any of the following: (a) all or substantially all of the assets of NextEra Energy Resources, LLC (“NextEra”) or its ultimate parent company, NextEra Energy, Inc. (“Ultimate Parent Entity”); (b) all or substantially all of NextEra’s or its Ultimate Parent Entity’s renewable energy generation asset portfolio; (c) all or substantially all of NextEra’s or its Ultimate Parent Entity’s wind generation asset portfolio; (d) a merger, consolidation, amalgamation, reorganization or similar transaction of a Person with or into NextEra or its Ultimate Parent Entity; or (e) a sale, assignment, pledge or other transfer of all or substantially all of the shares or equity interests of NextEra or its Ultimate Parent Entity; or (vi) any change of economic and voting rights triggered in Seller’s organization documents arising from the financing of the Facility and which does not result in the transfer of ownership, economic or voting rights in any entity that had no such rights immediately prior to the change, shall not constitute a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executiverequiring consent.
(b1) The Company and Executive hereby agree that if Executive is in the employ For purposes of the Company on the date on which this PPA, a “Pending Facility Transaction” or “PFT” means (i) any Change of Control occurs of Seller, (ii) the "Change issuance by Seller or any of Control Date"its Affiliates of a request for proposals or the response by Seller or any of its Affiliates to a request for proposal or similar process (e.g., auction) for the purchase or sale of the Facility, (iii) the commencement by Seller or any of its Affiliates of substantive negotiations with any third party with respect to the sale of the Facility, (iv) the execution by Seller or any of its Affiliates of any letter of intent, memorandum of understanding or similar document, whether or not legally binding, which contemplates the sale of the Facility, and/or (v) assignment by Seller of the PPA to a third party, except to the extent permitted in Section 19.1(B), the Company will continue (C) or (D). A PFT does not include, however, (i) any change that does not require consent pursuant to employ the Executive and the Executive will remain in the employ Section 19.3(A), (ii) any refinancing or replacing of the Unaffiliated Facility Investment by Seller or any of its Affiliates; (iii) any transaction in which Seller offered to and Company declined to acquire the Facility; or (iv) any sale for the period commencing on the Change purposes of Control Date and ending on the expiration a transfer of some or all of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, tax benefits associated with the Facility to an equity investor or any transaction involving the sale of his existing residence and the purchase of membership interests in Seller that is included in a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies sale of the Company and the Executive voluntarily terminates employment within sixty (60) days equity interests in Affiliates of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofSeller.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Wind Energy Purchase Agreement (Otter Tail Corp), Wind Energy Purchase Agreement (Otter Tail Corp)
Change of Control. (a) For the purposes of this Agreement, If a "Change of Control" shall Control occurs during the Performance Period, and your Award does not remain outstanding following the Change of Control and the acquiror or successor entity neither assumes nor provides a substitute for your Award that meets the requirements of a Replacement Award, then you will be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" earned that number of PSUs as defined described in Section 13(d)(36(b) below, effective as of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreementthe Change of Control, having more than 50% of the combined voting power of the then outstanding securities of and your Award shall become vested and nonforfeitable pursuant to Section 4 on [.], provided that, except as set forth in Section 6(c) or (d) below, you remain continuously employed by the Company that may be cast for the election or any of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executiveits Subsidiaries through [.].
(b) The number of PSUs earned shall be the determined in accordance with Appendix A, based on the Company and Executive hereby agree that if Executive is Value determined as of the date of the Change of Control, as follows:
(i) For any fiscal quarter in the employ Performance Period that has been completed as of the Company date of the Change of Control, Cumulative Adjusted EBITDA shall be determined based on the actual Adjusted EBITDA for such quarter;
(ii) For any fiscal quarter in the Performance Period that has not been completed as of the date on which a of the Change of Control occurs Control, Cumulative Adjusted EBITDA shall be determined based on the target Adjusted EBITDA for each such quarter, as set forth in Appendix B hereto; and
(iii) The Revenue Ratio shall be determined by using the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ target Revenue of the Company for the period commencing on any quarter in [.] which has not been completed as of the Change of Control Date Control, as set forth in Appendix B hereto, and ending on the expiration actual Revenue of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately Company for any quarter in [.] that has been completed prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During If you are not subject to a Severance and Change-in-Control Agreement with the remaining Term after Company, and if, within twelve (12) months following the date of the Change of Control Datebut prior to [.], your employment is terminated by the Company or the acquiror or successor entity without Cause or by you for Good Reason, the Company will (i) continue to honor the terms service vesting requirements of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof4 shall automatically be deemed satisfied, and (ii) continue employee benefits all restrictions and forfeiture provisions related thereto shall lapse as set forth in Section 4 hereof at levels in effect on of the Change date of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)termination.
(d) If during you are subject to a Severance and Change-in-Control Agreement with the remaining Term on or after Company and, within the Change of in Control Date (i) the Executive's Protection Period, as defined in your Severance and Change-in-Control Agreement, but prior to [.], your employment is terminated by the Company other than or the acquiror or successor entity without Cause or by you for cause (Good Reason, as those terms are defined in Section 5 hereof)your Severance and Change-in-Control Agreement, or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receivethen, subject to satisfaction of the release and other requirements of your Severance and Change-in-Control Agreement, the service vesting requirements of Section 4 shall automatically be deemed satisfied, and all restrictions and forfeiture provisions related thereto shall lapse as of subparagraphs (e) the date of such termination. For the avoidance of doubt, notwithstanding anything in your Severance and (f) below, a lumpChange-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing in-Control Agreement to the Executive under Section 3 hereof.
(e) The amounts payable to contrary, any PSUs not earned at the Executive under any other compensation arrangement maintained by the Company which became payable after payment time of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), pursuant to Section 6(b) above shall be reduced to forfeited at the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% time of the Executive's Base Salary (as computed in accordance with provisions Change of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearControl.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Performance Stock Unit Award Agreement (Evolent Health, Inc.), Performance Stock Unit Award Agreement (Evolent Health, Inc.)
Change of Control. (a) For the purposes Notwithstanding any other provision of this Agreement, a in the event that Purchaser's relationship with the Company, its successor (or any parent or subsidiary of either), whether as an employee or consultant, is terminated without "Cause" or if Purchaser resigns for "Good Reason" within thirteen (13) months after the effective date of the Change of Control" , then the Repurchase Option shall lapse and terminate and the Stock shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executivefully vested.
(b) The Company In the event that lapse and Executive hereby agree that if Executive is in the employ termination of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered Repurchase Option constitutes a "parachute payment" under Internal Revenue Code within the meaning of Section 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions it may be amended or replaced) of the Internal Revenue Code of 1986, as amended or replaced (the "Code") and any regulations promulgated thereunder(ii) but for determining whether this paragraph (b), would be subject to the Executive has received an excess parachute payment. Any such excess amount excise tax imposed by Section 4999 (as it may be amended or replaced) of the Code (the "Excise Tax"), then Purchaser's benefits hereunder shall be deferred either (i) delivered in full, or (ii) delivered as to such lesser extent which would result in no portion of such benefits being subject to the Excise Tax, whichever of the foregoing amounts, taking into account the applicable federal, state and paid local income taxes and the Excise Tax, results in the next receipt by Purchaser on an after-tax year.
basis, of the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and Purchaser otherwise agree in writing, any determination required under this paragraph (fb) shall be made in writing in good faith by the Company's independent public accountants (The "Accountants"). In the event of a proposed Change reduction in Controlbenefits hereunder, Purchaser shall be given the choice of which benefits to reduce. For purposes of making the calculations required by this paragraph (b), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code. The Company will allow and Purchaser shall furnish to the Executive Accountants such information and documents as the Accountants may reasonably request in order to participate make a determination under this paragraph (b). The Purchaser shall bear all costs the Accountants may reasonably incur in all meetings and negotiations related theretoconnection with any calculations contemplated by this paragraph (b).
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Packetvideo Corp), Common Stock Purchase Agreement (Packetvideo Corp)
Change of Control. (a) For Anything in this Agreement to the purposes contrary notwithstanding, if, upon or within one year of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if (as defined below) occurring at any time during the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")Term, the Company will continue to employ or a succeeding entity terminates Executive without Cause (as defined above) or the Executive and the Executive will remain in the employ of the Company terminates his employment for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause Good Reason (as defined in Section 5 hereof6(c) above), the Company or the succeeding entity’s obligation to Executive shall be (i) unpaid Base Salary, bonus and benefits accrued up to the effective date of termination, (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-lump sum payment equal to 299% of Executive's ’s then-current Base Salary for a period of twenty-four (24) months, and (iii) if Executive is eligible for and timely elects COBRA coverage for health insurance coverage, payment of Executive’s COBRA premiums for health insurance coverage for a period of up to eighteen (18) months, payments to be made on a monthly basis when the premiums are due. In the event of a without Cause Change of Control termination as described herein, these payments shall be in lieu of, and not in addition to to, any other compensation that may be due and owing severance pay or benefits set forth in Section 6(b) of this Agreement. Notwithstanding anything to the contrary contained herein or in any award agreement between Executive under Section 3 hereof.
(e) The amounts payable to and the Executive under any other compensation arrangement maintained by Company, in the Company which became payable after payment event of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunderas defined below), (i) all unvested awards held by the Executive under the Company’s 2007 Equity Incentive Plan, including stock options and restricted stock units described in Section 3(c) and any other subsequent awards, shall become fully vested upon the Change of Control and, if applicable, immediately exercisable, (ii) each such award, and each already vested award described in Section 3(c), which is a stock option shall continue to be exercisable for the remainder of its term, and (iii) with respect to any award under the Company’s 2007 Equity Incentive Plan that is subject to the attainment of performance objectives or specified performance criteria, such performance objectives and criteria shall be reduced deemed satisfied at the target level and any performance period shall be deemed to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% end as of the Executive's Base Salary (as computed in accordance with provisions date of the Internal Revenue Code Change of 1986Control. As a condition to his receipt of the post-employment payments and benefits under this Section 7(a), as amended other than the vesting of awards described in the preceding sentence, Executive must be in compliance with Section 5 of this Agreement, and any regulations promulgated thereundermust execute, return, not rescind and comply with a release of claims agreement in favor of the Company, related entities and individuals and the succeeding entity, within the timeframe and in a form to be prescribed by the Company or a succeeding entity. The severance shall be paid in a lump sum within ninety (90) for determining whether calendar days after the date of Executive’s termination of employment, provided that the Company has received the signed general release of claims agreement and Executive has received an excess parachute payment. Any not rescinded such excess amount shall be deferred and paid agreement within the rescission period set forth in the next tax yearsuch agreement.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Broadwind Energy, Inc.), Employment Agreement (Broadwind Energy, Inc.)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.If:
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by Initial Investors ceasing to directly or indirectly beneficially own 50.1 per cent. of the Company other than for cause (as defined in Section 5 hereof)issued voting share capital of, or ceasing to have the ability directly or indirectly to exercise 50.1 per cent. of the voting rights in, the Company;
(ii) there shall have occurred persons appointed, nominated or voted for by the Initial Investors taken together, ceasing to form a material reduction in Executive's compensation majority of the board of directors (or employment related benefits, equivalent body) of the Company;
(iii) InterCo is not or ceases to be the immediate Holding Company of PIKCo and the immediate wholly owned direct Subsidiary of Topco (save for any such shares required by applicable law to be issued to a material change in Executive's status, working conditions director or management responsibilities, other officer of InterCo);
(iv) PIKCo is not or a material change in ceases to be the business objectives or policies immediate Holding Company of the Company and the Executive voluntarily terminates employment within sixty immediate wholly owned direct Subsidiary of InterCo (60) days of save for any such occurrenceshares required by applicable law to be issued to a director or other officer of PIKCo);
(v) the Company is not or ceases to be the immediate Holding Company of Bidco and the immediate wholly owned direct Subsidiary of PIKCo (save for any such shares required by applicable law to be issued to a director or other officer of the Company); or
(vi) Bidco is not or ceases to be the immediate wholly owned direct Subsidiary of the Company (save for any such shares required by applicable law to be issued to a director or other officer of Bidco), or then:
(A) the last in a series of occurrences, then Company shall promptly notify the Executive shall be entitled to receive, subject Agent (copied to the provisions Brokers) upon becoming aware of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.event;
(eB) The amounts payable to if at the Executive under any other compensation arrangement maintained by the Company which became payable after payment expiry of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control Period, there is not an Outstanding Transaction Liability, a Lender shall not be obliged to fund a Utilisation;
(and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to C) if at the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% expiry of the Executive's Base Salary (as computed in accordance with provisions Change of Control Period, there is an Outstanding Transaction Liability, and on or before the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid proposed Utilisation Date specified in the next tax year.
(f) In the event of a proposed Change in Controlrelevant Utilisation Request, the Company (or any Broker on its behalf) has provided to the Agent an Outstanding Transaction List, notwithstanding the amount of any proposed Loan specified in that Utilisation Request, the amount of the proposed Loan shall be:
1. no more than the Outstanding Transaction Liability; or
2. if the Outstanding Transaction Liability is equal to more than the Available Facility, the Available Facility; and
(D) subject to paragraph (D) above, if the Majority Lenders so require, the Agent shall cancel the Total Commitments and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will allow the Executive to participate in be cancelled and all meetings such outstanding amounts will become immediately due and negotiations related theretopayable.
Appears in 2 contracts
Sources: Facility Agreement (Nordic Telephone CO ApS), Facility Agreement (Nordic Telephone CO ApS)
Change of Control. (a) For the purposes Notwithstanding any other provision of this Agreement, Agreement to the contrary:
(i) in the event of a "Change of Control" Control as described in Sections 2(b)(ii)-(iv), all unvested Performance Stock Units not previously forfeited shall become vested and (if the Change of Control occurs prior to the end of the Performance Period) shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including be earned at the Target; and
(ii) in the event of a "group" Change of Control as defined described in Section 13(d)(3) 2(b)(i), a portion of the Securities Exchange Act unvested Performance Stock Units not previously forfeited shall become vested and (if the Change of 1934, as amended, becomes Control occurs prior to the owner or beneficial owner end of the Company's securities, after Performance Period) shall be earned based on attainment of the Performance Measure(s) relative to the Target as of the date of this Agreementthe Change of Control, having more than 50% as though the Performance Period ended on such date. The portion that vests pursuant to the preceding sentence shall be determined by multiplying the total number of outstanding Performance Stock Units by a fraction, the numerator of which is the number of whole months in the Performance Period that have elapsed since the beginning of the combined voting power Performance Period through the date of the then outstanding securities Change of Control and the denominator of which is the number of whole months in the entire Performance Period. If the Participant has already vested due to death, Disability or Retirement prior to the date of the Company that may be cast for the election Change of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from Control but has not yet been paid, then, notwithstanding the provisions of Section 3(b), the above pro-ration shall apply to the Participant’s Performance Stock Units. The Committee shall have the power in accordance with Section 8 to calculate the attainment of the Performance Measure(s) as of the date of the Change of Control or determine the basis on which the attainment of the Performance Measure(s) as of such date will be calculated. For the avoidance of doubt, the Performance Stock Units lost due to pro-ration pursuant to this Section 8 by subsequent written agreement 6(a)(ii) will not vest and will be deemed forfeited upon the Change of Control event described in Section 2(b)(i).
(b) Notwithstanding any other provision of this Agreement to the contrary, upon a Change of Control, all Performance Stock Units, to the extent earned and vested, shall be settled in the form described in Section 5 but shall be paid upon the earlier of (i) within twenty-five (25) business days following the date of the Executive)event triggering vesting under this Section 6 or (ii) the original payment period set forth in Section 5; provided, however, that a Change of Control shall not be deemed to have occurred that, if the person who becomes Participant is or will become eligible for Retirement prior to the owner of more that 50% last day of the combined voting power of the Company is the Executive or an entity Performance Period, payment shall only be accelerated in accordance with subsection (or entitiesb)(i) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on is a change in ownership of stock or assets or change in effective control within the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation meaning set forth in Section 3 hereof, and (ii1.409A-3(i)(5) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrenceU.S. Treasury Regulations, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced but only to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of meaning is more restrictive than the Executive's Base Salary (as computed definition otherwise provided in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearthis Agreement.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Performance Stock Units Award Agreement (Universal Corp /Va/), Performance Stock Units Award Agreement (Universal Corp /Va/)
Change of Control. If there shall occur a change of control of CNB or the Employer (a) For the purposes of this Agreement, a "“Change of Control" shall ”), the Executive may be deemed assigned such other duties or responsibilities as would be reasonably equivalent under the circumstances and acceptable to have taken place if any person other than ▇▇the Executive in his reasonable discretion. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3During the first six (6) of months following the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the effective date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall but not after, Executive may be deemed “terminated without cause due to have occurred if the person who becomes the owner a Change of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the ExecutiveControl.
(b) The Company and Executive hereby agree that ” Alternatively, if Executive is in the employ retained but not given reasonably equivalent duties and responsibilities, he may resign within six (6) months of the Company on the effective date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Dateexpressly citing this reason in a written resignation. If after Executive has been terminated other than For Cause due to a Change of Control, the Executive is requested, andshall receive, in his sole lieu of any payments pursuant to Section 3.2, and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase upon execution of a replacement residence at full and final release by Executive, a one (1) time payment of 1.5 times the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by annual base compensation currently being provided to Executive as a result of any such reimbursementspursuant to this Agreement. If the Executive shall not consent to change his business location, aggregate present value (determined as of the Executive may continue to provide the services required date of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance accordance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended (the “Code”)) of the severance payment as described in this Section 3.3 and any regulations promulgated thereunder) for determining whether all other payments to the Executive has received an excess in the nature of compensation which are contingent on a change in ownership or effective control of the Employer or CNB or in the ownership of a substantial portion of the assets of the Employer or CNB (the “Aggregate Severance”) would result in a “parachute payment,” as defined under Section 280G of the Code, then the Aggregate Severance shall not be greater than an amount equal to 2.99 multiplied by Executive’s “base amount” for the “base period,” as those terms are defined under Section 280G of the Code. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Controlthe Aggregate Severance is required to be reduced pursuant to this Section 3.3, the Company will allow Executive shall be entitled to determine which portions of the Aggregate Severance are to be reduced so that the Aggregate Severance satisfies the limit set forth in the preceding sentence. Notwithstanding any provision in this Agreement, if the Executive may exercise his right to participate in all meetings and negotiations related theretoterminate employment under this Section 3.3, the Executive may choose which provision shall be applicable.
Appears in 2 contracts
Sources: Employment Agreement (CNB Bancorp Inc/Va), Employment Agreement (CNB Bancorp Inc/Va)
Change of Control. (a) For In the purposes event of this Agreement, a "Change change in control of Control" shall Employer required to be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3reported under Item 6(e) of Schedule 14A of Regulation 14A of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner :
(i) Employer may terminate Employee's employment only upon conclusive evidence of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than substantial and indisputable intentional personal malfeasance in office such as a result conviction for embezzlement of an issuance Employer's funds; and
(ii) Employee may terminate his employment at any time if there is a change in his general area of securities specifically approved by Executive and specifically excluded from the provisions responsibility, title or place of this Section 8 by subsequent written agreement of the Executive); providedemployment, however, that a Change of Control shall not be deemed to have occurred or if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive his salary or an entity (benefits are lessened or entities) controlled by the Executivediminished.
(b) The Company Following a change of control of Employer, any termination of Employee's employment either by Employee pursuant to Section 13(a)(ii) or by Employer under any circumstances other than involving conclusive evidence of substantial and Executive hereby agree that if Executive is indisputable intentional personal malfeasance in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")office, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.then:
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive Employee shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, promptly paid a lump-lump sum payment equal to 299one times his current annual base salary plus one times the most recent annual bonus paid to him;
(ii) Employee shall become 100% vested in all benefit plans in which he participates including but not limited to the Standex Retirement Savings Plan, the Management Savings Program portion of Executive's current Base Salary in addition to the Standex Annual Incentive Program and all restricted stock options and performance share units granted under the Standex Long Term Incentive Program and any other compensation that may stock option plans of the Employer;
(iii) One year of benefit service shall be due and owing added to the Executive years of service credited to Employee under the Standex Retirement Plan;
(iv) The salary and bonus paid under Section 3 hereof.13(b)(i) shall be deemed the Employee's compensation during such one additional year for purposes of the computation of his pension under the Standex Retirement Plan; and
(ev) The amounts payable to All life insurance and medical plan benefits covering the Executive under any other compensation arrangement maintained by Employee and his dependents shall be continued at the Company which became payable after payment expense of Employer for the one-year period following such termination as if the Employee were still an employee of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearEmployer.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement, Employment Agreement (Standex International Corp/De/)
Change of Control. After a Change of Control as set forth herein, if the Executive subsequently suffers a Termination of Employment, voluntary or involuntary, except for cause, then the Executive shall be entitled to receive the benefits in Paragraph V. Said benefit shall be based on the Executive’s salary bonus, and deferred compensation at the time of said termination, reduced by the factors set forth in said Paragraph V. Said benefit shall commence thirty (a30) days following said termination of employment.
(A) For the purposes of this Agreement, a "Change of Control" Control shall be deemed to have taken place if mean:
1. The acquisition by any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇one or more individuals, collectively entities or immediately, including a "group" as defined in groups (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of either (i) the then outstanding shares of common stock of the Holding Company (the then outstanding shares of common stock of the Holding Company (the “Outstanding Holding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Holding Company entitled to vote generally in the election of directors (the “Outstanding Holding Company Voting Securities”). Irrespective of the foregoing, becomes however, any transfer made as the owner result of the death of a shareholder whereby said shares pass to a beneficiary as designated under the shareholder’s duly probated Last Will and Testament, or as a result of intestacy should the deceased shareholder not have a duly probated Last Will and Testament, or by joint tenancy should the shares be owned by the deceased shareholder jointly with a spouse, or deceased shareholder’s issue, shall not be deemed to be a transfer for purposes of determining a change of control as set forth in this section. In addition, any transfer made by a shareholder which has been consented to by the Executive within thirty (30) days of said transfer, or which occurred more than three (3) years previously, shall be excluded from any computation of Change of Control under the provisions of this section. Any such transfer by death or approved transfer by Executive is hereinafter referred to as an “Exempt Transfer”; or
2. Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Holding Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms as used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board; or
3. Approval by the shareholders of the Holding Company of a reorganization, merger or. consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) more than 65% of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owner owners, respectively, of the Outstanding Holding Company Common Stock and the Outstanding Holding Company Voting Securities immediately prior to such reorganization, merger or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation of the Outstanding Holding Company Common Stock and Outstanding Holding Company Voting Securities, as the case may be (excepting the exempt transfers noted in (1) above, (ii) no Person (excluding the Holding Company, any employee benefit plan (or related trust) of the Holding Company, or such corporation resulting from such reorganization, merger or consolidation, and any Person beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, 35% or more of the Outstanding Holding Company Common Stock or Outstanding Holding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 35% or more of, respectively, of the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporation, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement providing for such reorganization, merger or consolidations; or
4. Approval by the shareholders of the Holding Company of (i) a complete liquidation or dissolution of the Holding Company or (ii) the sale or other disposition of all or substantially all of the assets of the Holding Company, other than to a corporation, with respect to which following such sale or other disposition, (a) more than 65% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors in then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Holding Company Common Stock and the Outstanding Holding Company Voting Securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Holding Company Common Stock and the Outstanding Holding Company Voting Securities, as the case may be, (b) no Person (excluding the Holding Company and any employee benefit plan (or related trust) of the Holding Company, or such corporation and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 35% or more of the Outstanding Holding Company Common Stock or the Outstanding Holding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 35% or more of, respectively, of the then outstanding voting shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (c) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Holding Company; or
5. The issuance or transfer of sufficient shares of stock, or a merger, reorganization or consolidation, which results in (i) more than 50% of the then outstanding shares of common stock of the Company's securities, after the date of this Agreement, or (ii) securities having more than 50% of the combined voting power of the then outstanding voting securities of the Company that may be cast for entitled to vote generally in the election of directors of the Company (directors, being owned by other than as a result of an issuance of the Holding Company or persons who owned securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of having more that 5065% of the combined voting power of the outstanding voting securities of the Holding Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is entitled to vote generally in the employ election of directors of the Holding Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
transaction (c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits but expressly excluding Exempt Transfers as set forth in Section 4 hereof at levels in effect on the Change of Control Date subparagraph (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)1) herein.
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Executive Salary Continuation Agreement (Lyons Bancorp Inc), Executive Salary Continuation Agreement (Lyons Bancorp Inc)
Change of Control. Notwithstanding (ab) For and (c) above, the purposes following provisions shall apply to the Awards in the event of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change end of Control Date. If after the Performance Period:
(i) in the event of a Change of Control, the Executive is requestedsurviving or successor entity (or its parent corporation) may continue, andassume or replace the Awards on substantially the same terms and conditions (with such adjustments as may be required or permitted by Section 15 of the Plan), in his sole and absolute discretionsuch Awards or replacements therefor shall remain outstanding and be governed by their respective terms, consents subject to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living (iii) and travel expenses for a time while arranging to move his residence (iv) below;
(ii) if and to the changed locationextent that the Awards are not continued, closing costsassumed or replaced in connection with a Change of Control, if any, associated with then a pro rata portion of the sale shares of his existing residence and Restricted Stock will become immediately vested based on the purchase date of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.and no Performance Units shall be earned and payable. The fraction to be used to determine the number of shares of Restricted Stock to vest hereunder shall have a numerator equal to the number of fiscal months elapsed between May 2, 2020 and the date of the Change of Control (rounded up to the nearest whole month) and the denominator of which shall be sixty (60);
(ciii) During if and to the remaining Term extent that the Awards are continued, assumed or replaced under the circumstances described in Section 3(e)(i), and if within two years after the Change of Control DateControl, Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason, then a pro rata portion of the shares of Restricted Stock will become immediately vested based on the date of termination and no Performance Units shall be earned and payable. The fraction (subject to a maximum of one (1)) to be used to determine the number of shares of Restricted Stock to vest hereunder shall have a numerator equal to the number of fiscal months elapsed between May 2, 2020 and the date of the termination (rounded up to the nearest whole month), and the denominator of which shall be sixty (60); and
(iv) Notwithstanding whether the Awards are continued, assumed or replaced in connection with a Change of Control, if Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason during the period beginning on the date an agreement is entered into by the Company will (i) continue with respect to honor a merger, consolidation or similar transaction of the terms Company, which would constitute a Change of this Agreement, including Base Salary and other compensation set forth in Section 3 hereofControl, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect the effective time of such merger, consolidation or similar transaction of the Company, then a pro rata portion of the shares of Restricted Stock will become immediately vested based on the date of the Change of Control Date and no Performance Units shall be earned and payable. The fraction (but subject to such reductions as may a maximum of one (1)) to be required used to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during determine the remaining Term on or after number of shares of Restricted Stock to vest hereunder shall have a numerator equal to the number of fiscal months elapsed between May 2, 2020 and the date of the Change of Control Date (i) rounded up to the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereofnearest whole month), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within denominator of which shall be sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof).
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Long Term Performance Based Award Agreement (Methode Electronics Inc), Long Term Performance Based Award Agreement (Methode Electronics Inc)
Change of Control. In the event the Term of Employment is terminated by the Company without justifiable cause (aas defined herein), or Executive resigns with Good Reason (as defined herein), within one (1) year after a Change of Control has occurred, Executive shall receive in full satisfaction of any obligation relating to Executive’s employment or the termination thereof an amount equal to the sum of two times the Executive’s Base Salary, and two times the Executive’s target Annual Incentive Bonus for the fiscal year in which the Change of Control occurs. The Company shall pay the amount required under the preceding sentence in a single payment thirty (30) days after termination of the Term of Employment, subject to and conditioned upon the Executive’s execution of the release required pursuant to paragraph 7(k) hereof and such release becoming irrevocable. For the purposes of this Agreementthe foregoing, a "Change of Control" Control shall have the meaning set forth in Exhibit B hereto. Any payments made pursuant to this paragraph (j) will be in lieu of payments to which Executive might have been entitled under paragraph 7(e) of this Agreement or under any other severance plan of the Company. The payments under this Agreement shall be deemed reduced if and to have taken place if the extent necessary to avoid any person other than ▇▇. ▇payments or benefits to Executive being treated as “excess parachute payments” within the meaning of Internal Revenue Code Section 280G(b)(i).
(i) All determinations relating to whether any payments otherwise required pursuant to this paragraph 7(j) need to be reduced shall be made by ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇ or, collectively at the Executive’s option, any other nationally or immediatelyregionally recognized firm of independent public accountants selected by the Executive and approved by the Company, including which approval shall not be unreasonably withheld or delayed (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within twenty (20) business days of the date of termination or such earlier time as is requested by the Company and an opinion to the Executive that he has substantial authority not to report any excise tax on his Federal income tax return with respect to any payments to be made hereunder. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. The Executive shall determine which and how much of the payments shall be eliminated or reduced consistent with the requirements of this paragraph 7(j), provided that, if the Executive does not make such determination within ten business days of the receipt of the calculations made by the Accounting Firm, the Company shall elect which and how much of the payments shall be eliminated or reduced consistent with the requirements of this paragraph 7(j) and shall notify the Executive promptly of such election. Notwithstanding the foregoing, if and to the extent necessary to avoid a "group" violation of Section 409A of the Code, no amounts payable under any “nonqualified deferred compensation plan” subject to Section 409A of the Code shall be reduced until after all other payments have been reduced. Within five business days thereafter, the Company shall pay to or distribute to or for the benefit of the Executive such amounts as defined are then due to the Executive under this Agreement. All fees and expenses of the Accounting Firm incurred in connection with the determinations contemplated by this paragraph 7(j) shall be borne by the Company.
(ii) As a result of the uncertainty in the application of Section 280G of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that payments will have been made by the Company which should not have been made (“Overpayment”) or that additional payments which will not have been made by the Company could have been made (“Underpayment”), in each case, consistent with the calculations required to be made hereunder. In the event that the Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against the Executive which the Accounting Firm believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the benefit of the Executive shall be treated for all purposes as a loan ab initio to the Executive which the Executive shall repay to the Company together with interest at the applicable federal rate provided for in Section 13(d)(37872(f)(2) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)Code; provided, however, that a Change of Control no such loan shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company been made and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed no amount shall be payable by the Executive immediately prior to the Change of Control Date. If after a Change of Control, Company if and to the extent such deemed loan and payment would not either reduce the amount on which the Executive is requestedsubject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes. In the event that the Accounting Firm, andbased upon controlling precedent or other substantial authority, in his sole and absolute discretiondetermines that an Underpayment has occurred, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive Underpayment shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated promptly paid by the Company other than to or for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies benefit of the Company and Executive together with interest at the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum applicable federal rate provided for in paragraph (d), upon or as a result Section 7872(f)(2) of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearCode.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Casual Male Retail Group Inc), Employment Agreement (Casual Male Retail Group Inc)
Change of Control. Notwithstanding the provisions of Sections 3 and 4 above, if within twenty-four (24) months following the occurrence of a Change of Control, there is a Termination of Employment:
(a) For (i) by the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively Company or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934an Affiliate, as amendedapplicable, becomes without Cause or due to Company-mandated (or Affiliate-mandated, as applicable) retirement, (ii) on account of death or Disability or (iii) by the owner or beneficial owner Participant on account of the Company's securitiesa Constructive Termination, after the date of this Agreementthen upon such termination, having more than 50% of the combined voting power of the then all outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this RSUs awarded pursuant to Section 8 by subsequent written agreement of the Executive)1 above shall vest in full; provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of event that the Company on the date on which a Change of Control occurs (prior to the "Change of Control Announcement Date"), the Company will continue number of RSUs awarded pursuant to employ Section 1 above that shall be deemed to be outstanding for this purpose shall be equal to the Executive and greater of (x) the Executive will remain number of RSUs determined as set forth in Section 1 above, determined using the Company’s performance during the actual quarters completed in the employ of the Company for the period commencing on Performance Period prior to the Change of Control Date and ending on Control, as determined by the expiration Committee (which, for this purpose, shall mean the Committee comprised of members of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive Board immediately prior to the Change of Control DateControl), and (y) the target number of RSUs. If after a Change of Control, Shares shall be issued to the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, Participant by the Company will reimburse as soon as reasonably practicable after such termination but not later than March 15 of the Executive for his relocation expensesyear following the year of vesting;
(b) by the Participant other than on account of a Constructive Termination, including without limitationthen all RSUs awarded pursuant to Section 1 above that are unvested at the date of termination shall be forfeited, moving expenses, temporary living and travel expenses for a time while arranging Shares with respect to move his residence any RSUs awarded pursuant to Section 1 above that are vested at the date of termination shall be issued to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable Participant by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for as soon as reasonably practicable after such termination but not later than March 15 of the Executive at that location commensurate with year following the Company's office prior to the Change year of Control Date.vesting; or
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than or an Affiliate, as applicable, for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrencesCause, then all RSUs awarded pursuant to Section 1 above, whether vested or unvested at the Executive shall be entitled to receive, subject to the provisions date of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder)termination, shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearforfeited.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Restricted Share Unit Award Agreement (Montpelier Re Holdings LTD), Restricted Share Unit Award Agreement (Montpelier Re Holdings LTD)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that 22.1 If there is a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is and, within 12 months following the Executive Change of Control directly or an entity indirectly in connection with it:
(or entitiesa) controlled by the Executive.Company terminates the Appointment other than in circumstances in which it was entitled to rely on clause 211); or
(b) The Company and Executive hereby agree that if Executive is the Employee serves notice to terminate the Appointment in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")accordance with clause 1.6, the Company will continue shall, subject to employ clause 22.2 below, pay the Executive and Agreed Sum to the Executive will remain in Employee within one month following Termination. The Agreed Sum shall be payable less any tax or other statutory deductions which the employ Company is obliged to deduct.
22.2 The payment of the Company for Agreed Sum shall be conditional on and in consideration of:
(a) the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate Employee complying with the authority being exercised obligations in clause 23.2(g);
(b) the Employee complying with and duties being performed by the Executive immediately prior continuing to the Change of Control Date. If after a Change of Controlcomply with his obligations relating to confidentiality, the Executive is requestedintellectual property and restrictive covenants as set out in clause 16.3, and, in his sole clause 17.2(c) and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.clause 24.4 respectively;
(c) During Clause 24.4 applying notwithstanding that the remaining Term after Appointment may, or without the Change payment of Control Datethe Agreed Sum might, otherwise have been repudiated by the Company; and
(d) the Employee executing such documents in a form reasonably acceptable to the Company as it may require.
22.3 For the avoidance of doubt, the Company will payment of the Agreed Sum shall not affect the Employee's entitlement to any of the following:
(ia) continue any accrued but unpaid salary;
(b) any payment in lieu of accrued but unused holiday; or
(c) the reimbursement of expenses, provided that all claims for reimbursement are submitted within four weeks after Termination, in relation, in each case, to honor the period before Termination.
22.4 To the extent that the Agreed Sum is damages (which is not admitted), the parties agree that the terms of this Agreement, including Base Salary clause 21.2 represent a genuine pre- estimate of the loss to the Employee that would arise on termination of the Appointment in the circumstances described and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect does not constitute a penalty. The [Company waives any requirement on the Change Employee to mitigate his losses in respect of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company termination and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receivethe] Employee shall, subject to clause 22.2(d), accept the provisions Agreed Sum in full and final settlement of subparagraphs all and any claims that he may have arising out of the Appointment or its termination (e) and (f) below, a lump-sum payment equal excluding any personal injury claims of which he is not aware at Termination or any claims in relation to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive accrued entitlements under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (dpension scheme), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Service Agreement (Remmington Enterprises, Inc.), Service Agreement (Remmington Enterprises, Inc.)
Change of Control. (a) For Notwithstanding any other provision contained herein, the purposes Employee's Initial Options and other options issued under the Company's share option plans that are not then exercisable shall become exercisable (and be deemed to be vested) on the date on which a
(b) If (i) the employment of the Employee is terminated by the Company (or successor thereto) without Serious Cause or (ii) the Employee terminates employment with the Company (or successor thereto) for Good Reason, in each case within the period commencing on the date that a Change of Control is formally proposed to the Company's Board of Directors and ending on the first anniversary of the date on which such Change of Control occurs, then the Employee shall be entitled to receive within 30 days of such termination (in lieu of the benefits described in Section 11): (1) any accrued but unpaid salary, (2) a lump sum payment equal to two times such Employee's annual base salary as of the date of termination, (3) any accrued but unpaid bonus from a prior fiscal year, (4) reimbursement of business expenses incurred prior to the date of termination, (5) travel and housing allowances under Section 9 for one year following the date of termination, (6) reasonable relocation expenses from Bermuda to the United States, together with (7) a gross up of any excise taxes payable by the Employee by reason of such payments occurring in connection with a Change of Control. The Employee shall not be entitled to any benefits or other entitlements under this Agreement, section unless a Change of Control actually occurs.
(c) A "Change of Control" of the Company shall be deemed to have taken place if occurred if, following consummation of the IPO (i) any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "groupperson" as such term is defined in Section 13(d)(33(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act of 19341934 (the "Exchange Act"), excluding the Company or any of its subsidiaries, a trustee or any fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to an offering of such securities or a corporation owned, directly or indirectly, by shareholders of the Company in substantially the same proportion as amendedtheir ownership of the Company, is or becomes the owner "beneficial owner" (as defined in rule 13d-3 under the Exchange Act), directly or beneficial owner indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's securitiesthen outstanding securities ("Voting Securities"); (ii) during any period of not more than two years, after individuals who constitute the date Board of Directors of the Company (the "Board") as of the beginning of the period and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i) or (iii) of this Agreementsentence) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at such time or whose election or nomination for election was previously so approved, having more cease for any reason to constitute a majority thereof; (iii) the shareholders of the Company approve a merger, consolidation or reorganization or a court of competent jurisdiction approves a scheme of arrangement of the Company, other than 50a merger, consolidation, reorganization or scheme of arrangement which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 40% of the combined voting power of the then outstanding securities Voting Securities of the Company that may be cast for the election of directors of the Company or such surviving entity outstanding immediately after such merger, consolidation, reorganization or
(other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the d) The provisions of this Section 8 by subsequent written agreement 12 shall only apply following the consummation of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the ExecutiveIPO.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD)
Change of Control. (a) For the purposes Attached to this Agreement as Annex A is a copy of this Agreementan Employment Agreement dated as December 22, a "Change of Control" shall be deemed to have taken place if any person other than 2008 between Parent Corporation and ▇▇. ▇▇▇▇▇▇▇ and (the “Amended Employment Agreement”). Upon the Effective Date (as defined in the Amended Employment Agreement) during the term of ▇▇▇▇▇▇▇▇▇’▇ employment with Employer, the Amended Employment Agreement shall become effective with (notwithstanding the provisions of the Amended Employment Agreement to the contrary) the following modifications: (i) the “Change of Control Period” as defined in the Amended Employment Agreement shall not terminate prior to the end of the term of this Agreement; (ii) the term thereof (referred to therein as the “Employment Period”) shall be the greater of three years, as provided therein, or the then remaining term of this Agreement; (iii) Paragraphs 3 and 5 and subparagraph 10(g) of this Agreement shall remain in full force and effect; (iv) clause (B) of Section 4(a)(i) and all of Section 4(b)(i) (except for the last sentence thereof) of the Amended Employment Agreement shall be of no force or effect, all direct or indirect references in the Amended Employment Agreement to Annual Base Salary or base salary (including, without limitation, references to Section 4(b) in clause (ii) of Section 5(c) of the Amended Employment Agreement) shall be deemed to refer to the Annual Base Compensation described and determined and computed in accordance with Paragraph 5 hereof and the reference in clause (iii) of Section 5(c) of the Amended Employment Agreement shall be deemed a reference to Paragraph 3 hereof; and (v) termination of employment on account of the death or disability of ▇▇▇▇▇▇▇▇▇ as provided in subparagraphs 10(c) and 10(d) hereof, respectively, shall remain in full force and effect and the provisions of the Amended Employment Agreement dealing with termination of employment on account of ▇▇▇▇▇▇▇▇▇’▇ death or disability and the effects thereof shall be of no force or effect. In all other respects the terms of the Amended Employment Agreement will thereafter govern the employment of ▇▇▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"subparagraphs 10(a), the Company will continue to employ the Executive 10(b) and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c10(f) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs no further force or effect (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced except to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended subparagraph 10(b) is incorporated into subparagraph 10(c) and any regulations promulgated thereunder10(d) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall amounts payable or benefits to be deferred provided pursuant to subparagraph 10(c) and paid in the next tax year10(d)).
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (City National Corp), Employment Agreement (City National Corp)
Change of Control. (a%3)Except as otherwise determined by the Company as set forth in Section 3(b)(i)(B) For hereof, in the purposes event that a Change of this AgreementControl occurs while the Participant is employed by the Company or any Subsidiary, a "the Participant shall immediately become fully vested and nonforfeitable upon the Change of Control in the PRSUs, with the number of Shares that will be delivered equal to the greater of target performance and actual performance as determined by the Committee in its reasonable discretion as of the most recent practicable date prior to the Change of Control" .
(A) Notwithstanding Section 3(b)(i)(A) hereof, if in the event of a Change of Control the Company determines that the successor company shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively assume or immediately, including a "group" substitute the PRSUs as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreementthe Change of Control, having more than 50% then the vesting of the combined voting power of the then outstanding securities of the Company PRSUs that may are assumed or substituted shall not be cast for the election of directors of the Company (other than so accelerated as a result of an issuance such Change of securities specifically approved by Executive and specifically excluded from Control; provided, however, that, if the provisions PRSUs are so assumed or substituted, the PRSUs shall no longer be subject to the Performance Goal and, instead a number of this Section 8 by subsequent written agreement PRSUs shall convert to service-based restricted stock units as of the ExecutiveChange of Control based on the greater of target performance and actual performance as determined by the Committee in its reasonable discretion as of the most recent practicable date prior to the Change of Control. For this purpose, the PRSUs shall be considered assumed or substituted only if (1) the PRSUs that are assumed or substituted vest at the times that such PRSUs would vest pursuant to this Agreement (based solely on continued service) and (2) immediately following the Change of Control, the PRSUs confer the right to receive for each unvested PRSU held immediately prior to the Change of Control, the consideration (whether stock, cash or other securities or property) received by holders of Shares in the transaction constituting a Change of Control for each Share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the transaction constituting a Change of Control shall is not be deemed to have occurred if the person who becomes the owner of more that 50% solely common stock of the combined voting power of the Company is the Executive successor company or an entity (its parent or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")subsidiary, the Company may provide that the consideration to be received upon the vesting of any PRSU will continue be solely common stock of the successor company or its parent or subsidiary substantially equal in fair market value to employ the Executive and the Executive will remain per share consideration received by holders of Shares in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after transaction constituting a Change of Control. The determinations of (1) whether the PRSUs shall be assumed or substituted in accordance with this Section 3(b)(i)(B) or shall accelerate vesting in accordance with Section 3(b)(i)(A) hereof and (2) in the event that this Section 3(b)(i)(B) is applicable, such substantial equality of value of consideration shall be made by the Executive is requestedCommittee in its sole discretion and its determinations shall be conclusive and binding. The award resulting from the assumption or substitution of the PRSUs by the successor company shall, andexcept as otherwise provided in this Section 3(b), in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term vest after the Change of Control transaction based solely on the Participant’s continued employment with the successor company and its affiliates through the Determination Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled referred to receive, subject to hereafter as the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof“Acquirer RSUs”.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Performance Based Restricted Stock Unit Grant Agreement (World Fuel Services Corp), Performance Based Restricted Stock Unit Grant Agreement (World Fuel Services Corp)
Change of Control. In the event of (a1) a Change of Control (as defined below) of The PBSJ Corporation or of Post, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. ("PBSJ Inc.) and (2) the termination of the Employee's employment by the Corporation or any successor thereto for any reason other than for Cause (as defined below), or the voluntary termination by the Employee of his employment hereunder for Good Reason (as defined below) at any time at least six months after the effective date of the Change in Control, all of the terms and conditions of the Agreement, as amended, shall remain in full force and effect, and shall be binding upon the Corporation. In the event of a termination for Cause under this paragraph, the Corporation shall have no further obligation under this Agreement to make any payments to, or bestow any benefits on, the Employee from and after the date of said termination, other than payments or benefits accrued for him prior to the date of said termination. For the purposes of this Agreementparagraph, a "Change of in Control" shall be deemed to have taken place if if:
(a) any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" (as defined such term is used in Section 13(d)(313(d) and 14(d) of the Securities Exchange Act of 1934, as amended, becomes but excluding the owner Corporation, any of its subsidiaries, The PBSJ Corporation Profit Sharing Trust and The PBSJ Corporation Employee Stock Ownership Plan and Trust), should acquire direct or beneficial owner indirect ownership of 80% or more of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved The PBSJ Corporation or PBSJ Inc. by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)any means whatsoever; provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.or
(b) the shareholders of The Company and Executive hereby agree that if Executive is in the employ PBSJ Corporation or PBSJ Inc. should approve any one of the Company on following transactions:
(i) the sale, lease, exchange or other transfer (in one transaction or a series of related transactions or a series of related transactions) of all, or substantially all, the assets of The PBSJ Corporation or PBSJ Inc.; or
(ii) any consolidation or merger of The PBSJ Corporation or PBSJ Inc., as the case may be, is not the surviving corporation, other than a merger of The PBSJ Corporation or PBSJ Inc. in which the holders of the common stock of The PBSJ Corporation or PBSJ Inc. immediately prior to the merger have the same proportionate ownership of the surviving corporation immediately after the merger. For purposes of this paragraph, Cause shall mean (1) fraud or misappropriation of corporate funds; or (2) conviction of a felony involving moral turpitude and such conviction is no longer subject to direct appeal. For purposes of this paragraph, "Good Reason" shall be deemed to exist under any of the following circumstances:
(a) the employee has been assigned any duties inconsistent with his position, duties, responsibilities and status with the Corporation immediately prior to the effective date on which a of the Change of in Control occurs (the "Change of Control Effective Date"), the Company will continue to employ the Executive and the Executive will remain or has been assigned reporting responsibilities, titles or offices of a lesser scope than those in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive effect immediately prior to the Change Effective Date, or he has been removed from, or not re-elected to, any of Control Date. If after a Change of Controlsuch positions, the Executive is requested, and, except in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated connection with the sale termination of his existing residence and employment for Cause;
(b) the purchase of a replacement residence at Corporation has reduced the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive Employee's base salary as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office effect immediately prior to the Change Effective Date or has failed to give him annual salary increases consistent with performance review ratings as compared with other employees of Control Date.the same or similar rank;
(c) During the remaining Term after Corporation has required the Change of Control Employee to be based at any office or location other than that at which the Employee is based at the Effective Date, except for travel reasonably required in the Company will (i) continue to honor performance of the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).Employee's responsibilities;
(d) If during the remaining Term on or after the Change Corporation has failed to comply with any provision of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofthis Agreement.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Supplemental Retirement/Death Benefits Agreement (PBSJ Corp /Fl/), Supplemental Retirement/Death Benefits Agreement (PBSJ Corp /Fl/)
Change of Control. (a) Upon a Change of Control (as defined below), the Executive may terminate the Term upon notice to the Company, effective as set forth in such notice if at any time, within twenty-four (24) months following the date of a Change of Control, any event constituting Good Reason hereunder continues for more than ten (10) days after the Executive delivers notice thereof to the Company. The failure of Executive to exercise his rights hereunder following an event constituting a Change of Control shall not preclude Executive from exercising such rights following the occurrence of a subsequent Change of Control event, even if related to a prior Change of Control Event.
(b) Upon (i) the execution of a definitive agreement (including, without limitation, any "lock-up" or voting agreement with any of the Company's principal stockholders) which contemplates a transaction, or (ii) the commencement of any tender or exchange offer or similar transaction for or involving the Company's securities, which, in the case of any transaction of the type described by clause (i) or (ii), if consummated, could result in a Change of Control, all restricted stock, stock option and performance share awards made to the Executive shall become automatically fully vested and exercisable in order to provide the Executive with a reasonable time period to enable the Executive to obtain the economic benefit of the contemplated transaction with respect to all restricted stock, stock option and performance share awards then held by him. Such restricted stock options and performance share awards shall become automatically exercisable and shall remain exercisable through their original terms with all rights; provided, however, in the event the transaction contemplated by the definitive agreement referred to above is not consummated and such definitive agreement is terminated, all accelerated restricted stock, stock options and awards shall be deemed restored to the vesting schedules in effect at the time of execution of such definitive agreement.
(c) For the purposes of this Agreement, a the term "Change of Control" shall be deemed to have taken place if mean the happening of any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.following:
Appears in 2 contracts
Sources: Employment Agreement (Genesis Health Ventures Inc /Pa), Employment Agreement (Genesis Health Ventures Inc /Pa)
Change of Control. Notwithstanding the aforementioned terms and provisions of this Agreement, the Employee’s benefits under this Agreement shall be nonforfeitable in the even of a Change in Control (aas hereinafter defined) of the Company. For this purpose:
(i) if the employment of the Employee shall terminate for any reason subsequent to a Change in Control (as hereinafter defined) of the Company prior to attaining his fifty-fifth (55th) birthday, the Employee shall be entitled to monthly payments as calculated under Article II of this Agreement as if said Employee had died while still employed by the Company on the date of said Employee’s termination; and
(ii) if the employment of the Employee shall terminate for any reason subsequent to a Change in Control (as hereinafter defined) of the Company on or after attaining his fifty-fifth (55th) birthday, the Employee shall be entitled to monthly payments as calculated under Article IV of this Agreement as if said employee had retired while still an employee of the Company on the date of said Employee’s termination; and
(iii) in the event the Employee shall die subsequent to a Change in Control (as hereinafter defined) of the Company while still employed by the Company prior to attaining his fifty-fifth (55th) birthday, such beneficiaries as the Employee shall have selected under the provisions of Article VI of this Agreement shall be entitled to the monthly payments as calculated under Article II of this Agreement; and
(iv) in the event the Employee shall die subsequent to a Change in Control (as hereinafter defined) of the Company while still employed by the Company on or after attaining his fifty-fifth (55th) birthday, such beneficiaries as the Employee shall have selected under the provisions of Article VI of this Agreement shall be entitled to the monthly payments as calculated under Article IV of this Agreement; and
(v) in the event the Employee shall die while receiving any payments as described in this Article XXI, any amounts remaining unpaid shall be paid to such beneficiaries as the Employee shall have designated under the provisions of Article VI of this Agreement. For the purposes of this Agreement, a "Change in Control of Control" the Company shall be deemed to have taken place if occurred if:
(i) there shall be consummated any person consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Common Stock of the Company would be converted into cash, other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇securities or other property, collectively or immediatelyany sale, including lease, exchange or other transfer (in one transaction or a "group" as defined in Section 13(d)(3series of related transactions) of all or substantially all of the assets of the Company, except for any consolidation or merger or sale, lease, exchange or other transfer of assets in which:
(a) the stockholders of the Company immediately prior to the consolidation, merger or transfer have the same proportionate ownership in the stock entitled to vote generally for the election of directors of the consolidated, surviving or transferee corporation immediately after the transaction; or
(b) the transaction is entirely among the Company and any subsidiary;
(ii) the stockholders of the Company approve any plans or proposals for the liquidation or dissolution of the Company;
(iii) there is a change in the Board of Directors of the Company as a result of an election contest following a solicitation of proxies subject to Rule 14a-11 under the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”); or
(iv) any Person (as hereinafter defined), becomes shall become directly or indirectly, the owner Owner or beneficial owner Beneficial Owner (as hereinafter defined) of 20% or more of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast stock entitled to vote generally for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); providedCompany, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power or any successor of the Company is pursuant to a transaction described in (i) above. For the Executive purposes of determining proportionate or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is percentage ownership of any stock referred to in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")foregoing definition, the Company will continue all options, warrants and other rights to employ the Executive purchase or otherwise acquire any such stock shall be treated as if such options, warrants and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being other rights had been fully exercised and duties being performed by such stock issued to the Executive holders of such rights immediately prior to the Change time at which such proportionate or percentage ownership is determined. For purposes of Control Date. If after a Change of Controlthe foregoing definition, the Executive “Person” means any person, as such term is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth used in Section 3 hereof, 13(d) and (ii14(d)(2) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company Exchange Act and “Owner or Beneficial Owner” means any owner or beneficial owner within the Executive voluntarily terminates employment within sixty (60) days meaning of any such occurrence, or Rule 13d-3 under the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofExchange Act.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Survivor Benefit Deferred Compensation Agreement (Corning Natural Gas Corp), Survivor Benefit Deferred Compensation Agreement (Corning Natural Gas Corp)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which If a Change of Control occurs (after the "Change of Control Date"), Grant Date but before the Company will Scheduled Vesting Date and while you continue to employ be employed, then the Executive and the Executive following will remain in the employ of the Company for the period commencing on apply:
(1) If the Change of Control Date and ending occurs on or after the expiration last day of the TermPerformance Period, the number of Units determined to exercise such authority have been earned as of the end of the Performance Period in accordance with Exhibit A will vest as of the Scheduled Vesting Date.
(2) If the Change of Control occurs before the last day of the Performance Period, and perform such executive duties as are commensurate if this Award is not continued, assumed or replaced in connection with the authority being exercised Change of Control, then a pro rata portion of the Target Number of Units will vest as of the date of and duties being performed by the Executive immediately prior to the Change of Control. The pro rata portion will be determined in the same manner as provided in Section 4(b)(3).
(3) If the Change of Control Date. If occurs before the last day of the Performance Period, and if this Award is continued, assumed or replaced in connection with the Change of Control but you experience an involuntary termination of employment for reasons other than Cause, or you terminate your employment for Good Reason (as defined below), and in either case such termination occurs within one year after a the Change of Control, then a pro rata portion of the Executive is requested, and, Target Number of Units shall vest as of your employment termination date. The pro rata portion shall be determined in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive same manner as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth provided in Section 3 hereof, and 4(c) (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefitsRetirement).
(d4) If during the remaining Term on or after the Change For purposes of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in this Section 5 hereof4(b), or “Good Reason” means, without your express written consent, (iiA) there shall have occurred a any material reduction in Executive's compensation the scope of your authority, duties or employment related benefits, or a responsibilities; (B) any material change reduction in Executive's status, working conditions or management responsibilities, or a your base compensation; (C) any material change in the business objectives geographic location of your principal place of employment; or policies (D) any action or inaction that constitutes a material breach by the Company of any agreement under which you provide services to the Company. Good Reason shall not, however, exist unless you have first provided written notice to the Company of the Company and initial occurrence of one or more of the Executive voluntarily terminates employment events under clauses (A) through (D) above within sixty ninety (6090) days of any such the event’s occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained such event is not fully remedied by the Company which became payable within thirty (30) days after payment the Company’s receipt of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearwritten notice from you.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Performance Restricted Stock Units Award Agreement (Polaris Inc.), Performance Restricted Stock Units Award Agreement (Polaris Inc.)
Change of Control. In the event that a Change of Control occurs during the Employment Term and within six months prior thereto or at any time thereafter, either the Partnership terminates the Executive’s employment hereunder without Cause (including pursuant to a Non-Renewal Notice) or the Executive terminates his employment hereunder with Good Reason or the Executive elects to terminate his employment hereunder during the six month period commencing on the sixth month anniversary and ending on the twelve month anniversary of a Change of Control, (a) For the purposes Partnership shall pay to the Executive, in accordance with Section 6.4 herein, the sum of this Agreement(i) the portion of the Base Salary earned but unpaid as of the Date of Termination, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" (ii) the Pro-rata Bonus (as defined in Section 13(d)(3below) and (iii) an amount equal to three times the sum of (A) the Base Salary plus (B) the Maximum Annual Bonus and (b) the Partnership shall provide to the Executive and his dependents from the Date of Termination until the expiration of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner third anniversary of the Company's securitiesDate of Termination (the “Severance Period”), after medical benefits substantially equivalent to the date of this Agreement, having more than 50% of medical benefits provided by the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive Partnership to senior executives and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)their dependents during such period; provided, however, (i) that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is benefits otherwise receivable by the Executive or an entity (or entities) controlled by the Executive.
pursuant to this clause (b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), 6.1 shall be reduced to the extent necessary so comparable benefits are actually provided to the Executive or his dependents by another party (and the Executive shall report to the Partnership any benefits that such amountsare actually provided to him); (ii) the Severance Period shall run concurrently with any period for which Executive is eligible to elect health coverage under COBRA; (iii) during the Severance Period, when added to such lump-sum, do the benefits provided in any one calendar year shall not exceed 299% affect the amount of benefits provided in any other calendar year; (iv) the reimbursement of an eligible taxable expense shall be made on or before the end of the calendar year following the calendar year in which the expense was incurred; and (v) the Executive's Base Salary ’s rights pursuant to this Section 6.1(b) shall not be subject to liquidation or exchange for another benefit. The Partnership’s obligation and the Executive’s rights under clause (a)(ii) and (iii) and clause (b) of this Section 6.1 shall terminate immediately upon the occurrence of a Competition Event (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yeardefined below).
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Suburban Propane Partners Lp), Employment Agreement (Suburban Propane Partners Lp)
Change of Control. A Change of Control of the Company occurs while the Grantee is a director of the Company and, in connection with such Change of Control, the successor corporation does not Assume the award under this Agreement or the Grantee does not continue to serve as a director of the successor corporation (aor, if the successor corporation is a subsidiary, the parent corporation). If the successor corporation Assumes the award under this Agreement and the Grantee continues to serve as a director of the successor corporation (or, if the successor corporation is a subsidiary, the parent corporation) until the Vesting Date, then no such acceleration shall apply. For the purposes of this Agreement, a "Change of Control" the award under this Agreement shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that “Assumed” following a Change of Control shall not be deemed to have occurred if the person who becomes following conditions are met:
(i) the owner award is converted into a replacement award covering a number of more that 50% shares of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on effecting the Change of Control Date and ending on (or a successor or parent corporation), as determined in a manner substantially similar to the expiration treatment of an equal number of Restricted Shares covered by the award; provided, that to the extent that any portion of the Term, to exercise such authority and perform such executive duties as are commensurate with consideration received by holders of the authority being exercised and duties being performed by the Executive immediately prior to Company common stock in the Change of Control Date. If after transaction is not in the form of the common stock of such entity (or a successor or parent corporation), the number of shares covered by the replacement award shall be based on the average of the high and low selling prices of the common stock of such entity (or a successor or parent corporation) on the established stock exchange on the trading day immediately preceding the date of the Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.;
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect the replacement award contains provisions for scheduled vesting and treatment on termination of employment that are no less favorable to the Change Grantee than the underlying award being replaced, and all other terms of Control Date the replacement award (but subject other than the security and number of shares represented by the replacement award) are substantially similar to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).the underlying award; and
(d) If during the remaining Term on or after the Change of Control Date (iiii) the Executive's employment is terminated security represented by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event replacement award is of a proposed Change in Control, the Company will allow the Executive to participate in all meetings class that is publicly held and negotiations related theretowidely traded on an established stock exchange.
Appears in 2 contracts
Sources: Restricted Stock Agreement (Howard Hughes Corp), Restricted Stock Agreement (Howard Hughes Corp)
Change of Control. (aA) For the purposes of Except as otherwise provided in this AgreementSection 3(a)(iv)(A) or in Section 3(a)(iv)(B) below, following a "Change of Control" , the unvested Restricted Shares outstanding as of such Change of Control shall no longer be subject to the performance requirements (if any) but shall remain outstanding and subject to service requirements through the Vesting Date; provided that, (x) if such Change of Control occurs prior to the Determination Date, the Restricted Shares outstanding shall be deemed to have taken place if any person be equal to the Target Shares and all Restricted Shares other than ▇▇. ▇▇▇▇▇▇ the Target Shares shall be forfeited immediately upon such Change in Control and ▇▇. ▇▇▇▇▇▇▇(y) if such Change of Control occurs on or after the Determination Date, collectively or immediately, including a "group" as defined in Section 13(d)(3) the Restricted Shares outstanding shall be determined after application of the Securities Exchange Act of 1934, as amended, becomes Performance Factor; provided further that in the owner event that your employment terminates on or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control but before the Vesting Date under any of the circumstances described in Section 3(a)(ii) above, (I) if such date of termination is also within 18 months following such Change of Control, your date of termination of employment shall not be deemed to have occurred be the Vesting Date, and all Restricted Shares then outstanding shall immediately vest and (II) if such date of termination is after the person who becomes date that is 18 months following such Change of Control, then upon your date of termination, a portion of your then outstanding Restricted Shares shall immediately vest, determined in a manner consistent with the owner of more pro-ration provided in Section 3(a)(ii). Furthermore, in the event that 50% your employment terminates under any of the combined voting power circumstances described in Section 3(a)(ii) above before the Determination Date and before a Change of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which Control, upon a Change of Control that occurs (prior to the "Determination Date, the date of such Change of Control Date"), shall be deemed to be the Company will continue to employ the Executive Determination Date for purposes of your Remaining Restricted Shares and the Executive Performance Factor will remain be deemed to be 100%.
(B) Notwithstanding the foregoing, in the employ event of the Company for the period commencing on the a Change of Control Date before the Vesting Date, unless (I) the unvested but outstanding Restricted Shares remain outstanding following such Change of Control in accordance with Section 3(a)(iv)(A) above and ending on (II) the expiration material terms and conditions of the Term, to exercise such authority and perform such executive duties Restricted Shares as are commensurate with the authority being exercised and duties being performed by the Executive in effect immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to are preserved following the Change of Control Date.
(c) During including with respect to the remaining Term after vesting schedules), the date of the Change of Control shall be deemed to be the Vesting Date for purposes of (x) the Target Shares, if such Change a Control occurs prior to the Determination Date, and all Restricted Shares other than the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Target Shares shall be forfeited immediately upon such Change of Control Date and (but subject to y) the then outstanding Restricted Shares (which, for the avoidance of doubt, shall be determined after application of the Performance Factor), if such reductions as may be required to maintain such plans Change in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term Control occurs on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofDetermination Date.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Restricted Stock Award Agreement (Cable One, Inc.), Restricted Stock Award Agreement (Cable One, Inc.)
Change of Control. 20.1 In the event the Executive’s employment by the Company terminates within the first twelve (a12) For the purposes of this Agreement, months following a "“Change of Control" ” in circumstances that entitle the Executive to payment of Severance Pay pursuant to clause 18.3 or clause 18.4 above, and provided the Executive satisfies the release provisions set forth in the applicable clause (including, but not limited to the execution of a Compromise Agreement in a form acceptable to the Company), the amount of the applicable Severance Payment due to the Executive under clause 18.3 or clause 18.4 (as the case may be) shall be deemed increased to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ (and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" substituted for) an amount equivalent to eighteen (18) months of base salary under this Agreement (as defined in Section 13(d)(3effect immediately prior to his Termination Date) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the ExecutiveLESS all Notice Payments.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which 20.2 If a Change of Control occurs while the Executive is still employed by the Company (the "Change or any of Control Date"its Affiliates), the Company will continue to employ the Executive and the Executive will remain in the employ all of the Executive’s then outstanding and otherwise unvested stock options and other equity-based awards granted by Holding, the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive or any Associated Company shall become fully vested immediately prior to the Change of Control Date. If after a Control, except as expressly provided otherwise in the agreement governing such stock option or other equity based awards or this Agreement.
20.3 In this Agreement, the term “Change of Control” shall mean the acquisition by any individual, corporation, partnership or other entity (each, a “Person”) after the Effective Date of legal or beneficial ownership of more than fifty percent (50%) of the equity or voting power of Holding or RP Corp; provided however, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale following acquisitions of his existing residence and the purchase equity or voting power of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state Holding or federal taxes payable by Executive as a result of any such reimbursements. If the Executive RP Corp shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on constitute a Change of Control (and would be considered regardless of the resulting changes in percentage ownership of the Parent or the Company by any of its shareholders by reason of such acquisition); any acquisition by (a) Holding or RP Corp, (b) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by Holding, RP Corp or any affiliate or a "parachute payment" under Internal Revenue Code 280G and regulations thereunder)successor thereof, shall be reduced or (c) any acquisition by a Person who is the legal or beneficial owner of at least percent (5%) of the equity or voting power of the Parent or the Company (or any affiliate of such Person) as of immediately prior to the extent necessary so that date of such amountsacquisition. As used in this clause 20, when added “affiliate” means with respect to any Person, any other Person which, direct or indirectly, is controlled by, controls, or is under common control with, such lump-sum, do not exceed 299% Person. For the purposes of the Executive's Base Salary preceding sentence, the word “control” (as computed in accordance with provisions including the terms “controlling,” “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of the Internal Revenue Code power to direct or cause the direction of 1986the management and policies of the entity, as amended and any regulations promulgated thereunder) for determining whether through the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearownership of voting securities or partnership interests or by contract.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.”
Appears in 2 contracts
Sources: Service Agreement, Service Agreement (RedPrairie Holding, Inc.)
Change of Control. (ai) For Notwithstanding the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the foregoing provisions of this Section 8 by subsequent written agreement of the Executive); providedparagraph 6, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs during the Period (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on or within six months after the expiration of the Term, to exercise such authority Period while Executive is employed by the Company) and perform such executive duties as are commensurate either (x) the Company terminates Executive's employment with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term within one year after the Change of Control Date, the Company will other than for "Good Cause" (ias hereinafter defined) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth or in Section 3 hereof, and connection with his death or Permanent Disability; or (iiy) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or Executive resigns within one year after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause "Good Reason" (as defined in Section 5 hereofhereinafter defined), or (ii) there then Executive shall have occurred a material reduction in Executive's not be entitled to receive any further compensation or employment related benefitsunder paragraph 4 hereof, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the but Executive shall be entitled to receive, subject to receive the provisions following:
(1) Base Salary accrued as of subparagraphs the termination date.
(e2) and (f) below, a lump-sum payment An amount equal to 299% of Executive's two years' Base Salary (at the then current Base Salary rate), payable over one year in addition equal monthly installments on the Company's regularly scheduled payroll dates commencing on the first pay period to any other compensation that may be due and owing to occur following the Executive last payment under Section 3 hereof.
clause (e1). Notwithstanding the foregoing, (x) The in the event the Change of Control is as described in clause (C) of the definition thereof, then the amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment this clause (2) shall be paid in their entirety upon occurrence of the lump-sum provided underlying event that the stockholders voted in favor of; and (y) in the event Executive shall have resigned for in paragraph (d), upon or as a result Good Reason within seven days after the occurrence of the exercise by Executive of rights which are contingent on a Change of Control (or in the case of changes of control based upon a stockholder vote, the occurrence of the underlying event that the stockholders voted in favor of), then the amounts payable under this clause (2) shall be paid in their entirety upon occurrence of the Change of Control or the underlying event as the case may be.
(3) The health care and life insurance benefits coverage provided to Executive at his date of termination shall be continued for a two year period at the same level and in the same manner as if his employment had not terminated (subject to the customary changes in such coverages if Executive reaches age 65 or similar events), beginning on the date of such termination; and any additional coverages Executive had at termination, including dependent coverage, will also be continued for such period on the same terms based on the same proportionate share of total cost of each such coverage as is being paid by Executive at the time of such termination. Notwithstanding the foregoing, (x) in the event the Change of Control is as described in clause (C) of the definition thereof, then the benefits due under this clause (3) shall be fully funded upon occurrence of the underlying event that the stockholders voted in favor of; and (y) in the event Executive shall have resigned for Good Reason within seven days after the occurrence of a Change of Control (or in the case of changes of control based upon a stockholder vote, the occurrence of the underlying event that the stockholders voted in favor of), then the benefits due under this clause (3) shall be fully funded upon occurrence of the Change of Control or the underlying event as the case may be.
(4) Except as provided below, any bonus payable under an incentive compensation or other Plan for the fiscal year in which the termination is effective, pro rated based on the number of days from the first day of such fiscal year to and including the date of termination. Any pro rated bonus payable hereunder shall be paid on the applicable date provided for in the Plan. In the event Executive resigns during the first year following a Change of Control for Good Reason as defined in clause (A) or (B) of the definition thereof, then the amount of bonus to be paid under any incentive compensation Plan then in effect shall be double the maximum amount to which Executive would be considered a "parachute payment" under Internal Revenue Code 280G entitled to thereunder for that year, regardless of whether the Company achieves the required results required to earn the maximum payments thereunder, and regulations thereunder), the bonus amount shall be reduced payable within seven days of the termination of employment.
(5) Vested benefits under any other Plan as of the termination date in accordance with the terms thereof.
(ii) If, following such a termination or resignation, Executive breaches the provisions of paragraph 7 hereof, Executive shall not be eligible, as of the date of such breach, for the payment of any further benefits under clauses (2) and (3) of subparagraph 6(e)(i) above, and all obligations and agreements of the Company to pay such benefits shall thereupon cease.
(iii) In addition to the extent necessary so that such amountsamounts provided for in subparagraph 6(e)(i) above, the Company shall pay to Executive the amount, if any, which when added to such lumpthe other amounts payable to Executive under this subparagraph 6(e), will place Executive in the same after-sum, do not exceed 299% tax position as if the excise tax penalty of the Executive's Base Salary (as computed in accordance with provisions Section 4999 of the Internal Revenue Code of 1986, as amended and amended, or any regulations promulgated thereunder) for determining whether successor statute of similar import, did not apply to any of the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Controlamounts payable under this paragraph 6(e), the Company will allow the Executive to participate in all meetings and negotiations related thereto.including this subparagraph 6(e)
Appears in 2 contracts
Sources: Employment Agreement (Cmi Industries Inc), Employment Agreement (Cmi Industries Inc)
Change of Control. (a) For Notwithstanding the purposes foregoing, in the event of this Agreement, a "Change of Control" :
(i) If the purchaser, successor or surviving entity (or parent thereof) in the Change of Control (the “Survivor”) agrees to assume the PUs or replace the PUs with the same type of award with similar terms and conditions, then the following will apply:
(A) If the Change of Control occurs during the first calendar year of the Performance Period, the Performance Goal shall be deemed to have taken place if any person other than ▇▇been satisfied at the target level, regardless of actual performance prior to or after such Change of Control, such that only the Target PUs remain available for vesting under this Award. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) If the Change of Control occurs after the end of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner first calendar year of the Company's securities, Performance Period (including after the date of this Agreement, having more than 50% end of the combined voting power Performance Period), then the Actual Achieved PUs will remain available for vesting under this Award.
(B) Each PU determined under clause (A) above that is assumed by the Survivor shall be appropriately adjusted, immediately after such Change of Control, to apply to the number and class of securities which would have been issuable to the Participant upon the consummation of such Change of Control had the PUs been actual shares immediately prior to such Change of Control.
(C) Upon termination of the then outstanding securities of Participant’s Employment following such Change in Control (1) by the Company that may be cast for and its Affiliates without Cause, or due to death or Disability, or (2) if the election Participant is then or was at the time of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled a Section 16 Participant, by the Executive.
(b) The Company and Executive hereby agree that if Executive is such Section 16 Participant for Good Reason, in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If each case within two years after a Change of Control, any unvested portion of this Award (or the Executive is requested, and, replacement award) shall immediately become vested in his sole and absolute discretion, consents full. Upon termination of the Participant’s Employment following such a Change in Control due to change his principal business locationRetirement, the Company will reimburse provisions of Section 4(c) shall apply.
(ii) To the Executive for his relocation expensesextent the Survivor does not assume the PUs or issue replacement awards as provided in clause (i), including without limitationthen, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office immediately prior to the Change date of Control Date.
(c) During the remaining Term after the Change of Control DateControl, the Company will Target PUs or Actual Achieved PUs, as applicable (i) continue to honor determined in the terms of this Agreement, including Base Salary and other compensation manner set forth in Section 3 hereof, and clause (iii)(A) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunderabove), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended become immediately and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearfully vested.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Cash Settled Performance Unit Award Agreement (Cooper-Standard Holdings Inc.), Cash Settled Performance Unit Award Agreement (Cooper-Standard Holdings Inc.)
Change of Control. (a) For Notwithstanding any provision herein to the purposes of this Agreementcontrary, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs prior to the end of the Performance Period (the "date of such occurrence, the “Change of Control Date"), the Company will continue to employ the Executive ”) and the Executive will remain Service Provider has remained in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate continuous service with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after Partnership Entities through the Change of Control Date, the Company will then, (i) continue the Service Provider shall be deemed to honor have earned a number of Performance Units equal to the terms number of this AgreementEarned Performance Units the Service Provider would have earned in accordance with Section 4, including Base Salary and other compensation set forth in Section 3 hereof, and but assuming that (iiA) continue employee benefits as set forth in Section 4 hereof at levels in effect the Performance Period ended on the Change of Control Date Date, and (but subject B) the determination of whether, and to such reductions what extent, the Partnership has satisfied the performance conditions set forth on Exhibit A shall be based on actual performance against the stated criteria through the Change of Control Date; and (ii) the number of Earned Performance Units determined in accordance with clause (i) of this Section 5(a) (as may be required grossed-up for further distributions in accordance with Section 3 above) shall become vested and nonforfeitable and the Continuous Service Requirement with respect to maintain such plans Earned Performance Units shall be deemed satisfied if either (A) the Service Provider remains in compliance continuous active service with applicable federal law regulating employee benefits).
the Partnership Entities from the Change of Control Date through (d1) If during the last day of the Performance Period with respect to 2/3 of the Earned Performance Units, and (2) the date that is the 12 month anniversary of the last day of the Performance Period, with respect to the remaining Term 1/3 of the Earned Performance Units; or (B) the Service Provider’s employment or service relationship with the Partnership Entities is terminated on or after the Change of Control Date by a Partnership Entity without Cause or by the Service Provider for Good Reason; provided, that, if the Continuous Service Requirement is deemed satisfied by virtue of this clause (B), then the number of Earned Performance Units with respect to which payment shall be made pursuant to Section 6 hereof shall be a number equal to the sum of (x) the product of (i) 2/3 of the total number of Earned Performance Units determined under this Section 5(a) times (ii) a fraction, the numerator of which is the number of full months (counting the month in which the Service Provider’s termination of employment or service relationship occurs as a full month), beginning with the month in which the Performance Period commences, during which the Service Provider was employed by, or provided services to, the Partnership Entities (the “Service Months”), or such greater number up to 24 as determined by the Committee in its sole discretion, and the denominator of which is 24 and (y) the product of (i) 1/3 of the total number of Earned Performance Units determined under this Section 5(a) times (ii) a fraction, the numerator of which is the Service Months, or such greater number up to 36 as determined by the Committee in its sole discretion, and the denominator of which is 36; provided further, that, upon such termination of employment or service, the Service Provider executes a release of all claims against the Partnership Entities (the form of which shall be delivered to the Service Provider on the date of termination) within 45 days following the Service Provider’s date of termination and does not subsequently revoke such release within the seven (7) day period following its execution; provided, however, that, if the Service Provider does not execute such release or executes and later revokes such release, the Service Provider shall not have satisfied the Continuous Service Requirement pursuant to this clause (B). Notwithstanding any provision contained herein to the contrary, if a Change of Control occurs following the last day of the Performance Period but prior to the date that is the 12 month anniversary of the last day of the Performance Period, then, the number of Earned Performance Units determined in accordance with Section 4 with respect to which the Continuous Service Requirement has not been satisfied as of such Change of Control Date (i.e., 1/3 of the Earned Performance Units at the end of the Performance Period, as grossed-up for further distributions as provided in Section 3 above) shall become vested and nonforfeitable and the Continuous Service Requirement with respect to such Earned Performance Units shall be deemed satisfied if either (i) the Executive's employment Service Provider remains in continuous active service with the Partnership Entities from the Change of Control Date through the date that is terminated by the Company other than for cause (as defined in Section 5 hereof), 12 month anniversary of the last day of the Performance Period; or (ii) there shall have occurred the Service Provider’s employment or service relationship with the Partnership Entities is terminated on or after the Change of Control Date by a material reduction in Executive's compensation Partnership Entity without Cause or employment related benefitsby the Service Provider for Good Reason; provided, or a material change in Executive's statusthat, working conditions or management responsibilities, or a material change in if the business objectives or policies Continuous Service Requirement is deemed satisfied by virtue of the Company and the Executive voluntarily terminates employment within sixty this clause (60) days of any such occurrence, or the last in a series of occurrencesii), then the Executive number of Earned Performance Units with respect to which payment shall be entitled made pursuant to receive, subject Section 6 hereof shall be a number equal to the provisions product of subparagraphs (eA) such number of Earned Performance Units, times (B) a fraction, the numerator of which is the Service Months, or such greater number up to 36 as determined by the Committee in its sole discretion, and the denominator of which is 36; provided further, that, upon such termination of employment or service, the Service Provider executes a release of all claims against the Partnership Entities (f) below, a lump-sum payment equal to 299% the form of Executive's current Base Salary in addition to any other compensation that may which shall be due and owing delivered to the Executive under Section 3 hereof.
Service Provider on the date of termination) within 45 days following the Service Provider’s date of termination and does not subsequently revoke such release within the seven (e7) The amounts payable to day period following its execution; provided, however, that if the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon Service Provider does not execute such release or as a result of the exercise by Executive of rights which are contingent on a Change of Control (executes and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that later revokes such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Controlrelease, the Company will allow Service Provider shall not have satisfied the Executive Continuous Service Requirement pursuant to participate in all meetings and negotiations related theretothis clause (ii).
Appears in 2 contracts
Sources: Master Agreement (Eagle Rock Energy Partners L P), Performance Unit Agreement (Eagle Rock Energy Partners L P)
Change of Control. (a) For If during the purposes term of this Agreement, there shall occur a "Change of Control" , Employee may terminate his employment hereunder for Good Reason (as hereinafter defined), whereupon Employee shall be deemed entitled to have taken place receive a payment equal to 2.99 times Employee’s average annual compensation paid by Company (including bonuses, if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3any) of during the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after three years preceding the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)termination; provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced if and only to the extent necessary so that to avoid the imposition of an exercise tax on such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions payment under Section 4999 of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunderamended. For purposes of this Agreement, a (“Change of Control”) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in deemed to have occurred on the next tax year.first day on which Employee, other than by reason of termination of Employee’s employment “for cause” (as defined above), or employee’s death, disability or volitional act, ceases to serve as a member of Company’s Board of Directors. For the purposes of this Agreement, (“Good Reason”) shall mean any of the following (without Employee’s express prior written consent):
(fa) In The assignment to Employee by Company of duties inconsistent with Employee’s then positions, duties, responsibilities, titles, or offices of any reduction in his duties or responsibilities, or any removal of Employee from or any failure to re-elect Employee to any such positions, except in connection with the event termination of Employee’s employment for Cause, or disability (as described above) or as a proposed Change result of Employee’s death or by termination of employment by Employee other than for Good Reason;
(b) A relocation of Company’s principal executive offices to a location outside of South Florida or Company’s requiring Employee to be based anywhere other than within 50 miles of the location at which Employee on the date hereof performs Employee’s duties, except for required travel on Company’s business to an extent substantially consistent with Employee’s business travel obligations on the date hereof;
(c) A failure by Company to continue in Controleffect any benefit or compensation plan (including any pension, profit-sharing, bonus, life, medical, disability and other insurance and employee benefit plans and programs) in which Employee participates, or a failure to provide Employee with substantially similar benefits, or the taking of any actions by Company will allow which would materially and adversely affect Employee’s participation in or reduce Employee’s benefits under any such plans;
(d) The taking of any action by Company which would deprive Employee of any material fringe benefit enjoyed by Employee on the Executive date hereof; or
(e) The failure by Company to participate in obtain the specific assumption of this Agreement by any successor or assignee of Company or any person acquiring substantially all meetings and negotiations related theretoof Company’s assets.
Appears in 2 contracts
Sources: Employment Agreement (Integrated Cannabis Solutions, Inc.), Employment Agreement (Integrated Cannabis Solutions, Inc.)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change of Control of RIBOZYME, unless ----------------- provisions have been made, to the Investor's sole satisfaction to protect ATUGEN's and the Investor's interest in Controlthe Escrow Technology, then ATUGEN shall receive and have access to the Company will allow Escrow Technology and shall have a co-exclusive license in the Executive Field to participate all Patents incorporated therein, if any one of the following criteria are met:
8.8.1 More than [*] of the Acquirer's annual revenues (according to the latest reported figures) are from its TVD activities; or
8.8.2 The Acquirer's actions, following the Change of Control of RIBOZYME, have caused RIBOZYME activities under this Section 8 to be significantly reduced, as determined by one or more of the following parameters:
(1) [*] (2) [*]
8.8.3 The Acquirer terminates the Service Agreement of November 23, 1998 between RIBOZYME and ATUGEN and/or this License Agreement.
8.8.4 ATUGEN unilaterally terminates the Service Agreement of November 23, 1998 between RIBOZYME and ATUGENand/or its obligation to purchase Nucleic Acid Molecule and Delivery Reagents under this License Agreement.
8.8.5 If such a transfer of the Escrow Technology to ATUGEN occurs, ATUGEN agrees to pay to RIBOZYME or its successor according to the following:
(1) ATUGEN shall pay to RIBOZYME a one-time fee equal [*] RIBOZYME's Supply Profit during the prior twelve months if the Service Agreement was terminated by ATUGEN pursuant to section 8.8.1 above or the Acquirer's actions described in all meetings and negotiations related theretosection 8.8.2 caused a failure of performance by RIBOZYME under the Service Agreement.
(2) ATUGEN shall pay to RIBOZYME an amount equal to [*] RIBOZYME's Supply Profit on an annual basis if the Service Agreement was terminated by ATUGEN under 8.8.4 above.
(3) ATUGEN shall not owe any payment to RIBOZYME if the Acquirer terminates the Service Agreement as described in Section 8.8.3.
Appears in 2 contracts
Sources: License Agreement (Ribozyme Pharmaceuticals Inc), License Agreement (Ribozyme Pharmaceuticals Inc)
Change of Control. (ai) For the purposes of this Agreement, Upon a "Change of Control" Control (as hereinafter defined), any Options that shall not yet be deemed to have taken place if exercisable under the terms of Section 3(a) shall immediately and without action by any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively party become exercisable (x) where the purchaser or immediately, including its ultimate direct or indirect parent company is as of the effective date of the Change of Control a "group" as defined in Section 13(d)(3) privately-held entity without a class of equity securities registered under the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”), becomes or (y) where, if the owner or beneficial owner Change of Control involves the sale of substantially all of the Company's securities, after ’s assets or this Agreement is not assumed by the acquirer or surviving party to such Change of Control transaction as of the effective date of this Agreementsuch Change of Control pursuant to Section 3(b)(ii) below. Upon either such (x) or (y) occurrence, having more than 50% the Options granted hereunder, to the extent not then exercised, shall be cancelled and the Company shall deliver to the Executive the excess, if any, of the combined voting power then-determined Fair Market Value (as such term is defined in the Plan) of one Common Share over the exercise price of the then outstanding securities Option, multiplied by the number of the Company that may be cast for the election of directors of the Company Common Shares underlying such unexercised Options.
(other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that ii) Upon a Change of Control where Section 3(b)(i) shall not be deemed apply and where the Options granted hereunder are exchanged or converted to have occurred if the person who becomes the owner of more that 50% options to acquire stock of the combined voting power purchaser or its ultimate direct or indirect parent company who has a class of equity securities registered under the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last Exchange Act in a series manner that satisfies the requirements of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) Sections 424 and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions 409A of the Internal Revenue Code of 1986, as amended amended, as of such effective date, which new options are subject to substantially the same terms and any regulations promulgated thereunder) for determining whether provisions as the Executive has received an excess parachute payment. Any Options granted hereunder including without limitation substantially the same vesting and exercise provisions and the equivalent economic value as of the date of such excess amount exchange, such new options shall be deferred thereafter vest and paid in become exercisable pursuant to the next tax yearterms of such new options.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Incentive Stock Option Agreement (Met Pro Corp), Non Qualified Stock Option Agreement (Met Pro Corp)
Change of Control. (a) For If a Change of Control shall occur, the Borrower shall, within ten days after the occurrence thereof, give each Lender notice thereof, which notice shall describe in reasonable detail the facts and circumstances giving rise thereto and shall specify an Optional Termination Date for purposes of this AgreementSection (the “Optional Termination Date”), which date shall not be less than 30 nor more than 60 days after the date of such notice. Each Lender may, by notice to the Borrower and the Administrative Agent given not less than three Business Days prior to the Optional Termination Date, declare the Loan held by it (together with accrued interest thereon) and any other amounts payable hereunder for its account to be, and such Loan and such other amounts shall thereupon become, due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, in each case effective on the Optional Termination Date (each Lender giving such notice, an “Exiting Lender”; each other Lender a “Non-Exiting Lender”). Notwithstanding the foregoing, if any condition specified in Section 4.2 cannot be satisfied on the Optional Termination Date such Change of Control shall be deemed to be an Event of Default. For the purpose of this Section, a "“Change of Control" ” shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediatelyoccurred if:
(a) a third person, including a "“group" ” as defined in Section 13(d)(3) of the Securities Exchange Act of 19341934 (as amended the “Exchange Act”), as amendedbut excluding any employee benefit plan or plans of CenturyLink and its Subsidiaries and Affiliates, becomes the owner beneficial owner, directly or beneficial owner indirectly, of the Company's securities, after the date of this Agreement, having 30% or more than 50% of the combined voting power of the then CenturyLink’s outstanding voting securities of ordinarily having the Company that may be cast right to vote for the election of directors of the Company CenturyLink;
(other than b) the individuals who, as of December 31, 2014 constituted the Board of Directors of CenturyLink (the “Board of Directors” generally and as of December 31, 2014 the “Incumbent Board”) cease for any reason to constitute at least a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement majority of the ExecutiveBoard of Directors, or in the case of a merger or consolidation of CenturyLink, do not constitute or cease to constitute at least a majority of the board of directors of the surviving company (or in a case where the surviving corporation is controlled, directly or indirectly, by another corporation or entity do not constitute or cease to constitute at least a majority of the board of such controlling corporation or do not have or cease to have at least a majority of voting seats on any body comparable to a board of directors of such controlling entity or, if there is no body comparable to a board of directors, at least a majority of voting control of such controlling entity); provided, howeverthat any person becoming a director (or, that in the case of a Change of Control shall not be deemed controlling non-corporate entity, obtaining a position comparable to have occurred if the person who becomes the owner of more that 50% a director or obtaining a voting interest in such entity) subsequent to December 31, 2014 whose election, or nomination for election, was approved by a vote of the combined voting power persons comprising at least a majority of the Company is the Executive Incumbent Board (other than an election or nomination of an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive individual whose initial assumption of office is in connection with an actual or threatened election contest, as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the employ Exchange Act) shall be, for purposes of this Agreement, considered as though such person were a member of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.Incumbent Board; or
(c) During the remaining Term after the Change of Control DateCenturyLink shall fail to own, the Company will (i) continue to honor the terms of this Agreementdirectly or indirectly, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299100% of the Executive's Base Salary (as computed in accordance with provisions outstanding voting securities ordinarily having the right to vote for the election of directors of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearBorrower.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Qwest Corp), Credit Agreement (Centurylink, Inc)
Change of Control. (ai) Upon a Change of Control for which the Corporation has not elected to make an Early Termination Payment pursuant to Section 4.1(a), and subject to Section 4.1(b)(ii), all Tax Benefit Payments, whether payable with respect to Units that were Exchanged or Specified Section 734(b) Basis Adjustment Transactions that occurred prior to the date of such Change of Control or on or after the date of such Change of Control, shall be calculated (A) by using Valuation Assumptions (4), (5) and (6), substituting in each case the terms “the closing date of a Change of Control” for an “Early Termination Effective Date” and (B) assuming that in each Taxable Year ending on or after the closing date of such Change of Control, the Corporation’s taxable income (prior to the application of deductions arising from the Basis Adjustments, Imputed Interest, and Actual Interest Amounts) will equal the greater of (x) the actual taxable income (prior to the application of deductions arising from the Basis Adjustments, Imputed Interest, and Actual Interest Amounts) for such Taxable Year and (y) the product of (i) four and (ii) the highest taxable income (calculated without taking into account extraordinary items of income or deduction and prior to the application of deductions arising from the Basis Adjustments, Imputed Interest, and Actual Interest Amounts) in any of the four fiscal quarters ended prior to the closing date of such Change of Control. For the all purposes of this Agreement, the amount determined pursuant to clause (y) of the preceding sentence shall (A) be calculated as though the Corporation owned the same percentage of the LLC as it owned in the Taxable Year in respect of which the Tax Benefit Payment is being made and (B) be increased by 10% (compounded annually) for each Taxable Year beginning with the second Taxable Year following the closing date of the Change of Control and shall be adjusted on a "daily pro rata basis for any short Taxable Year following the Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇.
(ii) Notwithstanding the foregoing, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, event that a Change of Control occurs prior to January 1, 2022, all Tax Benefit Payments payable pursuant to this Section 4.1(b) shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity calculated using Valuation Assumptions (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"1), (4), (5) and (6), substituting in each case the Company will continue to employ terms “the Executive and the Executive will remain in the employ closing date of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive ” for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control “Early Termination Effective Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.”
Appears in 2 contracts
Sources: Tax Receivable Agreement (Bioventus Inc.), Tax Receivable Agreement (Bioventus Inc.)
Change of Control. (a) For In the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that event a Change of Control occurs while this Award is outstanding, then all the Shares subject to this Award shall not be deemed converted into the right to have occurred if receive for each such Share the person who becomes same consideration per Common Share payable to the owner other holders of more that 50% such Common Shares in consummation of the combined voting power Change of Control, and such consideration, to the extent vested at the time of the Company is Change of Control or in accordance with the Executive or an entity (or entities) controlled by Vesting Schedule of this Agreement and the ExecutivePlan, shall be subsequently distributed on the applicable Issuance Date.
(b) The Company and Executive hereby agree that Notwithstanding subsection (a) above, if Executive is in the employ of Participant’s employment or service with the Company on the date on which a Change of Control occurs (the "Change of Control Date"), is terminated by the Company will continue to employ without Cause within 24 months following the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, then the Executive is requestedShares (or other consideration) subject to this Award, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed locationextent outstanding, closing costs, if any, associated with the sale shall become fully vested as of his existing residence and the purchase such termination of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state employment or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Dateservice.
(c) During Notwithstanding subsection (a) above, if Participant’s employment or service with the remaining Term after Company ceases by reason of Participant’s death, Disability or Retirement following the Change of Control DateControl, then the Company will Shares (ior other consideration) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required this Award, to maintain such plans the extent outstanding, shall vest in compliance accordance with applicable federal law regulating employee benefitsSection 3(b).
(d) If during This Agreement shall not in any way affect the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies right of the Company and the Executive voluntarily terminates employment within sixty (60) days to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of any such occurrence, its business or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofassets.
(e) The amounts payable to If this Award is not assumed, continued or substituted in connection with the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions the Plan, then the Shares issuable under this Award or other consideration payable with respect to such Shares in connection with the Change of Control shall be issued on the effective date of the Internal Revenue Code Change of 1986Control or as soon as administratively practicable thereafter, as amended and any regulations promulgated thereunderbut in no event more than fifteen (15) for determining whether the Executive has received an excess parachute payment. Any business days after such excess amount shall be deferred and paid in the next tax yeareffective date.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Restricted Share Unit Issuance Agreement (Genpact LTD), Restricted Share Unit Issuance Agreement (Genpact LTD)
Change of Control. (a) For Notwithstanding any other provision contained herein, the purposes Employee's Initial Options and other options issued under the Company's share option plans that are not then exercisable shall become exercisable (and be deemed to be vested) on the date on which a
(b) If (i) the employment of the Employee is terminated by the Company (or successor thereto) without Serious Cause or (ii) the Employee terminates employment with the Company (or successor thereto) for Good Reason, in each case within the period commencing on the date that a Change of Control is formally proposed to the Company's Board of Directors and ending on the first anniversary of the date on which such Change of Control occurs, then the Employee shall be entitled to receive (in lieu of the benefits described in Section 11): (1) any accrued but unpaid salary, (2) a lump sum payment equal to two times such Employee's annual base salary as of the date of termination, (3) any accrued but unpaid bonus from a prior fiscal year, (4) reimbursement of business expenses incurred prior to the date of termination, (5) travel and housing allowances under Section 9 for one year following the date of termination, (6) reasonable relocation expenses from England to the United States, together with (7) a gross up of any excise taxes payable by the Employee by reason of such payments occurring in connection with a Change of Control. The Employee shall not be entitled to any benefits or other entitlements under this Agreement, section unless a Change of Control actually occurs.
(c) A "Change of Control" of the Company shall be deemed to have taken place if occurred if, following consummation of the IPO (i) any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "groupperson" as such term is defined in Section 13(d)(33(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act of 19341934 (the "Exchange Act"), excluding the Company or any of its subsidiaries, a trustee or any fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to an offering of such securities or a corporation owned, directly or indirectly, by shareholders of the Company in substantially the same proportion as amendedtheir ownership of the Company, is or becomes the owner "beneficial owner" (as defined in rule 13d-3 under the Exchange Act), directly or beneficial owner indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's securitiesthen outstanding securities ("Voting Securities"); (ii) during any period of not more than two years, after individuals who constitute the date Board of Directors of the Company (the "Board") as of the beginning of the period and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i) or (iii) of this Agreementsentence) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at such time or whose election or nomination for election was previously so approved, having more cease for any reason to constitute a majority thereof; (iii) the shareholders of the Company approve a merger, consolidation or reorganization or a court of competent jurisdiction approves a scheme of arrangement of the Company, other than 50a merger, consolidation, reorganization or scheme of arrangement which would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 40% of the combined voting power of the then outstanding securities Voting Securities of the Company that may be cast for the election of directors of the Company or such surviving entity outstanding immediately after such merger, consolidation, reorganization or
(other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the d) The provisions of this Section 8 by subsequent written agreement 12 shall only apply following the consummation of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the ExecutiveIPO.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD)
Change of Control. (a) For 53.1 The Supplier shall provide written notice to the purposes Authority within 15 Working Days of this Agreement, a "any Change of Control" Control of the Supplier [or the Parent Company] taking place. [Template Note: Parent Company wording needed only if the Supplier is required to procure a Guarantee in relation to a particular Call Off Contract]
53.2 Subject to Clauses 53.4 and 53.5, the Authority shall be deemed entitled to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined terminate this Contract in Section 13(d)(3accordance with Clause 61.1.1(b) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that where there is a Change of Control shall to which the Authority objects, except where the Authority has given its prior written consent to the particular Change of Control (such consent not to be deemed unreasonably withheld or delayed), which subsequently takes place as proposed.
53.3 [If at any time the Guarantor ceases to have occurred be the Parent Company of the Supplier, following a change of Control of the Supplier or the Parent Company itself, the Supplier shall, within 20 days of the request by the Authority procure that a replacement Guarantee substantially in the form set out in Schedule 7 (Form of Guarantee) is executed by the Supplier's new Parent Company.] [Template Note: Clause needed only if the person who becomes Supplier is required to procure a Guarantee in relation to a particular Call Off Contract]
53.4 The non exhaustive grounds upon which the owner Authority may object to a Change of more that 50% of Control are:
53.4.1 it would mean the combined voting power of the Company is the Executive or Authority would contract with an entity which:
(or entitiesa) controlled by the Executive.Authority would not have contracted with at the Effective Date (for example, where the entity would not have met the ITT evaluation criteria);
(b) The Company and Executive hereby agree that if Executive has materially failed to deliver services to the Authority to the standards required in any contract with the Authority or any other Local Body; and/or
(c) takes a stance on matters relating to corporate social responsibility (including environmental sustainability) which is in inconsistent with the employ policies of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on UK government; and/or
53.4.2 the Change of Control Date and ending on might or would adversely affect or prejudice:
(a) national security or the expiration level of threat of criminal activity; and/or
(b) the operations, reputation or good standing of the Term, Authority.
53.5 The Authority's right to exercise such authority and perform such executive duties as are commensurate with terminate this Contract under Clause 53.2 shall expire if not exercised within six (6) months of the authority being exercised and duties being performed date of written notice to the Authority by the Executive immediately prior Supplier pursuant to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control DateClause 53.2.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Contract for the Provision of Deployed Services, Call Off Agreement
Change of Control. (a) For Notwithstanding the purposes preceding provisions of this Agreement, a "Change upon the occurrence of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents following provisions shall apply:
(a) The Term shall be extended to change his principal business location, a period of one (1) year after the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to date on which the Change of Control Dateoccurs if the remaining Term as of the Change of Control effective date is less than one (1) year.
(b) If, during the Term, as extended pursuant to Section 8(a), Executive’s employment is Terminated without Cause or Executive Resigns for Good Reason, the Company shall provide to Executive the following severance benefits:
(1) The Company shall pay to Executive, in lieu of the compensation specified in Sections 7(e) or 7(f), a severance payment (subject to any applicable payroll or other taxes required to be withheld) equal to two (2) times the sum of (i) Executive’s Base Salary at the rate then in effect, or if greater, in effect immediately preceding the Change of Control and (ii) the average of the cash bonuses paid or accrued on Executive’s behalf with respect to the two (2) completed calendar years preceding the effective date of the Change of Control. In addition, the Bank shall continue Executive’s health and life insurance coverage at the Bank’s expense for a twenty-four (24) month period following Executive’s Termination without Cause or Resignation for Good Reason.
(2) The payments described in this Section 8 shall be due Executive regardless of any subsequent employment obtained by Executive.
(c) During In the remaining Term after event that the Change of Control Date, the Company will (i) continue aggregate payments or benefits to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject be made or afforded to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change Executive in the business objectives or policies event of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and whether under this Agreement or otherwise) would be considered a "deemed to include an “excess parachute payment" ” under Internal Revenue Code Section 280G and regulations thereunder)or any successor thereto, then such payments or benefits shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (avoid treatment as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an “excess parachute payment. Any ”, with the reduction among such excess amount shall payments and benefits to be deferred made first to payments and paid in the next tax yearbenefits payable or provided under this Agreement.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Meetinghouse Bancorp, Inc.), Employment Agreement (Meetinghouse Bancorp, Inc.)
Change of Control. Notwithstanding anything to the contrary contained in this Agreement, in the event of a Change of Control of Employer if Employee’s employment is terminated by Employer or Employee for Involuntary Termination within one (1) year after the Change of Control (other than for Cause), then: (i) the greater of (a) fifty percent (50%) of Employee’s unvested options shall vest immediately, or (b) twelve (12) months unvested options shall vest immediately and; and (ii) Employee shall be entitled to (a) any accrued but unpaid salary and unused vacation time as of the date of such termination; (b) twelve (12) months’ of salary from the date of termination, payable in accordance with the normal payroll practice of the Company; (in this section, this period shall be referred to as the “Severance Period”) and (c) continued participation, at Employer’s cost and expense, during the Severance Period in any Employer-sponsored group benefit plans in which Employee was participating as of the date of termination or reimbursement as provided in Section 5. For the purposes of this Agreement, a "“Change of in Control" ” shall be deemed to have taken place if any person mean, other than ▇▇. ▇▇▇▇▇▇ changes between Cytrx and ▇▇. ▇▇▇▇▇▇▇RXi, collectively (i) an acquisition of any voting securities of the Employer (the “Voting Securities”) by any “person” (as the term “person” is used for purposes of Section 13(d) or immediately, including a "group" as defined in Section 13(d)(314(d) of the Securities Exchange Act of 1934, as amended, becomes amended (the owner “1934 Act”)) immediately after which such person has “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the 1934 Act) (“Beneficial Ownership”) of 50% or beneficial owner more of the Company's securities, after combined voting power of the date Employer’s then outstanding Voting Securities without the approval of this Agreement, having the Board; (ii) a merger or consolidation that results in more than 50% of the combined voting power of the Employer’s then outstanding securities Voting Securities of the Company that may be cast for the election of directors of the Company Employer or its successor changing ownership (other than as a result of an issuance of securities specifically whether or not approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the ExecutiveBoard); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entitiesiii) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and all or substantially all of the purchase Employer’s assets; or (iv) approval by the shareholders of the Employer of a replacement residence at the changed location, plus an additional amount representing a gross-up plan of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies complete liquidation of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofEmployer.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Rxi Pharmaceuticals Corp), Employment Agreement (Rxi Pharmaceuticals Corp)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by as defined in the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ 's Employment Agreement between the Executive and the Executive will remain Bank in effect at the employ time of said Change of Control, or if no such agreement is then in effect, by the regulations of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control DateOTS in 12 CFR ss.574. If after Upon a Change of Control, if the Executive is requestedsubsequently suffers an involuntary termination of service, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive except for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current locationcause, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change such termination of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause service constitutes a Separation from Service (as defined in Section 5 hereofIV), or, upon a voluntary termination of service within twelve (12) months after such Change of Control, if any of the following events, which have not been consented to in advance by the Executive in writing, occur: (i) if the Executive would be required to move her personal residence or perform her principal executive functions more than forty (40) miles from the Executive's primary office as of the signing of this agreement, or (ii) there shall have occurred a material reduction in if the Bank should fail to maintain Executive's base compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies effect as of the Company date of the Change of Control and the Executive voluntarily terminates employment within sixty (60) days of any such occurrenceexisting employee benefits plans, or the last in a series of occurrencesincluding material fringe and retirement plans, then the Executive shall receive the benefits in Section IV herein upon attaining Normal Retirement Age (as defined in Section III), as if the Executive had been continuously employed by the Bank until the Executive's Normal Retirement Age. Notwithstanding the foregoing, all sums payable hereunder shall be entitled reduced in such manner and to receivesuch extent so that no such payments made hereunder, when aggregated with all other payments to be made to the Executive by the Bank, shall be deemed an "excess parachute payment" in accordance with Section 280G of the code and be subject to the provisions excise tax provided at Section 4999(a) of subparagraphs (e) and (f) belowthe Code. Notwithstanding the above, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to if the Executive is as of the date of her Separation from Service a "Specified Employee" (as herein defined), then payment under Section 3 hereof.
(e) The amounts payable to this Article IX shall not be paid earlier than the 183rd day following the date the Executive under incurs a Separation from Service, or her death, if earlier, with any other compensation arrangement maintained by the Company which became payable after payment payments not made on account of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of this sentence being paid with the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute first payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Executive Salary Continuation Agreement (American Bancorp of New Jersey Inc), Executive Salary Continuation Agreement (American Bancorp of New Jersey Inc)
Change of Control. (a1) If (i) a Change of Control (as defined below) occurs during the Term of this Agreement or any extension thereof, (ii) Employee is employed by the Company or an affiliate thereof, and (iii) the Employee is terminated by the Company or such affiliate for any reason other than for death, Disability or Cause after the Change of Control, the Company (or its successors) shall pay Employee, or his beneficiary in the event of his subsequent death, subject to applicable federal and state income and social security tax withholding requirements, in accordance with the Company's customary payroll practices, an amount equal to the product of 2.99 multiplied by Employee's "Base Amount," as defined in Section 280G(b)(3) of the Internal Revenue Code, as amended (the "Code") (which amount is generally the average annual compensation payable during the most recent five tax years ending before the year of the Change in Control as reflected on Forms W-2 for the relevant periods), such amount to be paid in equal monthly installments over the thirty-six month period following termination, or at the option of Employee to be paid in a lump sum at the time of termination without any reduction for commutation to present value. During the thirty-six month period following termination, the Company (or its successors) shall also pay for medical and life insurance for Employee on the same basis as in effect at the time of termination. Payments to the Employee, as aforesaid, shall not be reduced by the value of any stock options that vest upon a change in control, regardless of whether any such options are considered income by the Internal Revenue Service or parachute payments under Section 280G(b)(3).
(2) If (i) a Change of Control (as defined below) occurs during the Term of this Agreement or any extension thereof, (ii) Employee is employed by the Company or an affiliate thereof, and (iii) Employee voluntarily terminates his employment by the Company for any reason within 180 days after the Change of Control, the Company (or its successors) shall pay Employee or his beneficiary in the event of his subsequent death, subject to applicable federal and state income and social security tax withholding requirements, in accordance with the Company's customary payroll practices, an amount equal to the product of 2.99 multiplied by Employee's Base Amount, such amount to be paid in equal monthly installments over the thirty-six month period following termination, or at the option of Employee to be paid in a lump sum at the time of termination without any reduction for commutation to present value. During the thirty-six month period following termination, the Company (or its successors) shall also pay for medical and life insurance for Employee on the same basis as in effect at the time of termination. Payments to the Employee, as aforesaid, shall not be reduced by the value of any stock options that vest upon a change in control, regardless of whether any such options are considered income by the Internal Revenue Service or parachute payments under Section 280G(b)(3).
(b) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if means the occurrence of one of the following: (i) any person other than ▇▇. ▇▇▇▇▇▇ "person" (as that term is used in Sections 13(d) and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(314(d)(2) of the Securities Exchange Act of 1934, as amended), other than (A) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or (B) Employee or a group of persons including Employee, is or becomes the owner or beneficial owner (as that term is used in Section 13(d) of the Company's securitiesSecurities Exchange Act of 1934), after directly or indirectly, of 50% or more of the date common voting stock of this Agreement, having the Company or its successors; (ii) there shall be any consolidation or merger of the Company or the Bank in which such entity is not the continuing or surviving corporation or as a result of which the holders of the voting capital stock of the Company or the Bank (as the case may be) immediately prior to the consummation of the transaction do not own more than 50% of the combined voting power capital stock of the then outstanding securities surviving corporation; or (iii) there occurs the sale or transfer of all or substantially all of the assets of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofBank.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (First National Corp /Sc/), Employment Agreement (First National Corp /Sc/)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that If a Change of Control occurs, outstanding Restricted Stock Units shall not be deemed treated as described in this subsection. Notwithstanding anything to have occurred if the person who becomes contrary, the owner of more that 50% of Committee may take such other actions with respect to the combined voting power of Restricted Stock Units as it deems appropriate pursuant to the Company is the Executive or an entity (or entities) controlled by the ExecutivePlan.
(bi) The Company and Executive hereby agree that if Executive is If the Restricted Stock Units are Assumed in the employ accordance with Section 9 of the Company on the date on which a Change of Control occurs (the "Change of Control Date")Plan, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company Restricted Stock Units shall continue to maintain an office for vest (and the Executive at that location commensurate underlying Shares shall continue to be issued) in accordance with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation Vesting Schedule set forth in Section 1 above and this Section 3 hereof(including, for the avoidance of doubt, Section 3(B)), based on Participant’s continued employment or service with the Company and its Affiliates as set forth herein.
(ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date Notwithstanding subsection (i) above, if the Executive's Restricted Stock Units are Assumed in accordance with Section 9 of the Plan, and Participant’s employment is terminated by the Company other than and its Affiliates without Cause [or Participant terminates employment for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, Good Reason]1 or a material change in Executive's statusParticipant’s employment terminates due to Retirement, working conditions upon or management responsibilities, or a material change in within 18 months following the business objectives or policies closing of the Company Change of Control and before the Executive voluntarily terminates employment within sixty (60) days of any such occurrenceapplicable vesting date, or the last in a series of occurrencesRestricted Stock Units shall, then the Executive shall be entitled to receive, subject to the provisions extent not then vested or previously forfeited or cancelled, become fully vested upon such termination of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofemployment.
(eiii) The amounts payable If the Restricted Stock Units are not Assumed in accordance with Section of 9 of the Plan, the Restricted Stock Units shall, to the Executive under extent not then vested or previously forfeited or cancelled, become fully vested upon the Change of Control.
(iv) If Participant’s employment terminates due to Retirement prior to a Change of Control, then any other Restricted Stock Units which have not vested pursuant to Section 3(C) above shall become immediately vested upon such Change of Control.
(v) Notwithstanding anything in this Agreement to the contrary, to the extent that the Restricted Stock Units constitute nonqualified deferred compensation arrangement maintained by the Company which became payable after payment subject to Section 409A of the lump-sum provided for in paragraph Code and the Treasury Regulations thereunder (d“Section 409A”), upon or as a result of the exercise by Executive of rights which are contingent on if (A) a Change of Control does not constitute a “change in control event” under Section 409A, or (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunderB) otherwise required by Section 409A, any amounts that are payable pursuant to subsection (ii), (iii) or (iv) above shall be reduced to paid within 60 days following the extent necessary so that such amountsotherwise applicable vesting date. For the avoidance of doubt, when added to such lump-sumupon a Transaction, do not exceed 299% of the Executive's Base Salary (as computed Restricted Stock Units shall be treated in accordance with provisions the terms of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearthis Agreement.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Restricted Stock Unit Issuance Agreement (Boot Barn Holdings, Inc.), Restricted Stock Unit Issuance Agreement (Boot Barn Holdings, Inc.)
Change of Control. (a) In the event of a Change of Control, the Options shall immediately become fully vested and exercisable. For purposes of any options granted to the Executive prior to October 6, 2008, “Change of Control” shall have the meaning set forth in, or incorporated into, the applicable award agreement. For the purposes of this AgreementAgreement and options granted on or after October 6, 2008, a "“Change of Control" ” shall be deemed to have taken place if occurred if, after the Commencement Date, there shall have occurred any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" of the following: (i) any “person,” as defined such term is used in Section 13(d)(313(d) and 14(d) of the Securities Exchange Act of 19341934 (the “Exchange Act”), other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company or a Group Affiliate, or any company owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as amended, becomes the owner or beneficial owner their ownership of stock of the Company's securities, after acquires beneficial ownership (as defined under Section 13(d) of the date Exchange Act) of voting securities of the Company and immediately thereafter is a “50% Beneficial Owner.” For purposes of this Agreementprovision, having a “50% Beneficial Owner” shall mean a person who is the “beneficial owner” (as defined under Section 13(d) of the Exchange Act), directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the then Company’s then-outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)voting securities; provided, however, that a Change of Control the term “50% Beneficial Owner” shall not be deemed to have occurred if the include any person who becomes the was a beneficial owner of more outstanding voting securities of the Company at the Commencement Date (an “Existing Shareholder”), including any group that may be formed which is comprised solely of Existing Shareholders or any affiliate of an Existing Shareholder to whom voting securities may be transferred if and for so long as the Existing Shareholder remains an indirect beneficial owner of the voting securities following such transfer, unless and until such time after the Commencement Date as any such Existing Shareholder shall have acquired beneficial ownership (other than by means of a stock dividend, stock split, gift, inheritance or receipt of securities in compensation for individual services as a director or officer of the Company) of any additional voting securities of the Company; (ii) during any period of twelve (12) consecutive months commencing on or after the Commencement Date, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a “person” (as defined above) who has entered into an agreement with the Company to effect a transaction described in subsections (i), (iii) or (iv) of this definition) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved (the “Continuing Directors”), cease for any reason to constitute at least a majority thereof; (iii) the consummation of a merger, consolidation, recapitalization, or reorganization of the Company, or a reverse stock split of any class of voting securities of the Company, other than any such transaction which would result in at least 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ voting securities of the Company on or the date on which a Change surviving entity outstanding immediately after such transaction being beneficially owned by persons who together beneficially owned at least 80% of Control occurs (the "Change combined voting power of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ voting securities of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive outstanding immediately prior to such transaction with the Change relative voting power of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence each such continuing holder compared to the changed location, closing costs, if any, associated with the sale voting power of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall each other continuing holder not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or substantially altered as a result of the exercise transaction; provided that, for purposes of this Section 2.7(b)(iii), such continuity of ownership (and preservation of relative voting power) shall be deemed to be satisfied if the failure to meet such 50% threshold (or to substantially preserve such relative voting power) is due solely to the acquisition of voting securities by Executive an employee benefit plan of rights which are contingent on the Company or Group Affiliate, such surviving entity or a subsidiary thereof; or (iv) the sale or disposition by the Company of all or substantially all of the Company’s assets (or any transaction having a similar effect). The foregoing notwithstanding, a transaction shall not constitute a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced if its sole purpose is to change the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% state of the Executive's Base Salary Company’s incorporation. In addition, an initial public offering (as computed in accordance with provisions “IPO”) of the Internal Revenue Code securities of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related theretoshall not constitute a Change of Control for purposes of this Agreement.
Appears in 2 contracts
Sources: Employment Agreement (Rotech Healthcare Inc), Employment Agreement (Rotech Healthcare Inc)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated within one year after a Change of Control (as defined below), either by the Company other than without Cause or by Executive for cause Good Reason, Executive shall be paid, within 10 days after such termination, a lump sum, in cash, equal to (i) 24 months' base salary as defined then in Section 5 hereof)effect, or plus (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefitstwo times the average of the bonuses, or a material change in Executive's statusif any, working conditions or management responsibilities, or a material change earned by Executive in the business objectives or policies three Fiscal Years preceding the date of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrencetermination. In addition, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject any amounts to which Executive may be entitled pursuant to the provisions plans, policies and practices of, or benefits provided by, the Company as then in effect. Except as provided in this Section 16(e), upon a termination of subparagraphs employment pursuant to this paragraph, all other benefits under this Agreement (eexcept life insurance under Section 8(b), medical insurance under Section 9(b), indemnification under Section 19 and reimbursement of legal fees and expenses under Section 26(g)) shall lapse, expire and (f) belowbe forfeited. Anything to the contrary herein notwithstanding, a lump-sum payment equal if any payments pursuant to 299% of Executive's current Base Salary in addition this Section 16(e), when added to any other compensation that may be due and owing to the Executive amounts paid or payable under Section 3 hereof.
(e) The amounts payable to the Executive under this Agreement, any other compensation arrangement maintained by agreement between Executive and the Company which became payable after payment (including pursuant to any stock or stock option agreements) or any other plan, practice, policy, program or arrangement of the lump-sum provided for in paragraph (d)Company, upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code as defined in section 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended (the "Code"), all such payments and/or benefits shall be limited to the largest portion of such payments and any regulations promulgated thereunder) for determining whether benefits as can cumulatively be paid without the Executive has received an excess total of such payments being deemed a "parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control," provided, however, the Company will allow shall obtain shareholder approval of this Agreement and the Executive new option grant on or before the closing date of the Transaction and thereafter use its best efforts to participate obtain shareholder approval of all payments that would be deemed "parachute payments" in all meetings and negotiations related thereto.each case in accordance with the shareholder approval requirements of Code Section 280(G)(b)
Appears in 2 contracts
Sources: Employment Agreement (Loehmanns Holdings Inc), Employment Agreement (Loehmanns Holdings Inc)
Change of Control. Upon the occurrence of a Series A Change of Control that occurs after the Series A Original Issue Date, each Series A Preferred Unitholder, with respect to all but not less than all of its Series A Preferred Units, by notice given to the Partnership within ten (a10) For Business Days of the purposes date the Partnership provides written notice pursuant to Section 5.12(l)(v), shall be entitled to elect one of this Agreement, a "the following from sub-clauses (i) through (iv) (or with respect to any subsequent notice exercising any deferred Partnership’s decision of its right to redeem any Series A Preferred Units following the execution of definitive agreements that provide for such Series A Change of Control" , solely change its original election, if different, to elect sub-clause (i)) (the “Series A Change of Control Conversion Right”) (with the understanding that any Series A Preferred Unitholder who fails to timely provide notice of its election to the Partnership shall be deemed to have taken place if any person elected the option set forth in sub-clause (i) below):
(i) convert all, but not less than all, of its Series A Preferred Units into Common Units, effective immediately prior to the closing of the Series A Change of Control, at the then- applicable Series A Change of Control Conversion Ratio (such number of Common Units, the “Series A Change of Control Conversion Consideration”);
(ii) other than ▇▇with respect to a Series A Change of Control that results in the dissolution or liquidation of the Partnership, require the Partnership (or the surviving entity, if not the Partnership) to redeem all of the Series A Preferred Units held by such Series A Preferred Unitholder for an amount in cash, per Series A Preferred Unit, equal to the applicable Series A Redemption Price. ▇▇▇▇▇▇ If any Series A Preferred Unitholder elects this sub-clause (ii) with respect to the Series A Preferred Units held by such Series A Preferred Unitholder, then no later than 10 Business Days following the consummation of such Series A Change of Control, the Paying Agent shall remit the applicable cash consideration to such Series A Preferred Unitholder. Any such Series A Preferred Unitholder electing this sub-clause (ii) shall deliver to the Transfer Agent any
(iii) if the Partnership is the surviving entity following such Series A Change of Control, and ▇▇. ▇▇▇▇▇▇▇the Common Units continue to be listed for, collectively or immediatelyadmitted to, including trading on a "group" National Securities Exchange, continue to hold its Series A Preferred Units; and
(iv) if the Partnership is not the surviving entity of such Series A Change of Control or the Partnership is the surviving entity but its Common Units will cease to be listed or admitted to trading on a National Securities Exchange (such surviving entity, or the parent of such surviving entity immediately following the Series A Change of Control, the “Successor Entity”), upon request of a Series A Preferred Unitholder require the Partnership to use its commercially reasonable efforts to deliver or to cause to be delivered to the Series A Preferred Unitholder, in exchange for its Series A Preferred Units upon consummation of such Series A Change of Control, a security in the Successor Entity that has substantially similar rights, preferences and privileges as defined the Series A Preferred Units, including, for the avoidance of doubt, the right to distributions equal in amount and timing to those provided in Section 13(d)(35.12(d) and a conversion rate proportionately adjusted such that the conversion of such security in the Securities Exchange Act Successor Entity immediately following the Series A Change of 1934, as amended, becomes Control would entitle the owner or beneficial owner Series A Preferred Unitholder to the number of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding common securities of such Successor Entity (together with a number of common securities of equivalent value to any other assets received by Common Unitholders in such Series A Change of Control), which, if a Series A Preferred Unit had been converted into Common Units immediately prior to such Series A Change of Control, such Series A Preferred Unitholder would have been entitled to receive immediately following such Series A Change of Control (such securities in the Company that may be cast for the election of directors of the Company (other than as surviving entity, a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive“Series A Substantially Equivalent Unit”); provided, however, that that, if the Partnership is unable to deliver or cause to be delivered Series A Substantially Equivalent Units to any Series A Preferred Unitholder in connection with such Series A Change of Control, each Series A Preferred Unitholder shall be entitled to require conversion or redemption of its Series A Preferred Units in the manner contemplated in sub-clause (i) or (ii) above.
(v) In connection with a Series A Change of Control shall not be deemed to have occurred if or the person who becomes the owner execution of more definitive agreements that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which provide for a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Series A Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company Partnership will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence promptly provide written notice to the changed location, closing costs, if any, associated with Series A Preferred Unitholders that describes the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Series A Change of Control Date.
and state: (cA) During the remaining Term after events constituting the Series A Change of Control; (B) the prior or anticipated date of the Series A Change of Control; (C) the Series A Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.Conversion Date;
Appears in 2 contracts
Sources: Limited Partnership Agreement, Limited Partnership Agreement
Change of Control. (a) For the purposes of this AgreementNote, a "“Change of Control" ” shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively mean a consolidation or immediately, including a "group" as defined merger in Section 13(d)(3which Maker (or its wholly owned subsidiary) is not the surviving corporation or which results in the acquisition of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of Maker’s outstanding voting equity securities by a single person or entity or by a group of persons and/or entities acting in concert, or the combined voting power sale, exclusive license or transfer of all or substantially all of Maker’s assets (except that any transaction that is undertaken solely for the purpose of “reincorporating” Maker in another jurisdiction or which is meant solely to create a holding company structure for Maker shall not be a Change of Control). If this Note is still outstanding and unconverted, then at the closing of a Change of Control, Maker shall prepay this Note in an amount equal to the Adjusted Principal Amount multiplied by the Sale Multiple (as defined below). “Sale Multiple” shall mean, as applicable, (i) 1.1, if a Change of Control occurs within twelve (12) months after the First Closing Date; (ii) 1.5, if a Change of Control occurs between twelve (12) months and twenty-four (24) months after the First Closing Date and (iii) 2.0, if a Change of Control occurs between twenty-four (24) months and thirty-six (36) months after the First Closing Date. Maker is required to provide written notice to the Holder of a Change of Control at least thirty (30) days prior to such Change of Control, which notice shall include a summary of the then outstanding securities material terms, even if such summary is non-binding, of a proposed of Change of Control (the Company that may be cast for “Change of Control Notice”). If the election of directors of consideration payable to the Company (Holder hereof in connection with any such transaction is in a form other than cash or marketable securities, then the value of such consideration shall be determined in the Change of Control Notice in good faith by Maker’s Board of Directors on the same basis as a result for every other stockholder of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)Maker; provided, however, that the Requisite Purchasers may, at their written election to Maker and at their cost, retain the services of an independent third party appraiser reasonably acceptable to Maker to appraise the value of such consideration, in which case the determination of such appraiser shall be final and binding for all purposes; provided further, however, that Maker may elect, at Maker’s option and at Maker’s cost, to retain the services of a Change second independent third party appraiser reasonably acceptable to Holder to appraise the value of Control shall not be deemed to have occurred if such consideration, in which case the person who becomes the owner of more that 50% average of the combined voting power determinations of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive two appraisers shall be entitled to receive, subject to the provisions of subparagraphs (e) final and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofbinding for all purposes.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Convertible Promissory Note (Alpha Healthcare Acquisition Corp Iii), Convertible Promissory Note (Alpha Healthcare Acquisition Corp Iii)
Change of Control. During the portion of the Term ending on the third (3rd) year anniversary of the first NDA approval by the FDA (the “Initial Partner Restricted Period”), Partner agrees not to solicit or initiate a sale process with respect to a controlling interest of its equity or all, or substantially all, of its assets (each a “CoC Transaction”), without the prior written consent of Bioprojet, in Bioprojet’s sole discretion; provided that no such consent shall be required if Partner (or a successor corporate entity created for purposes of an initial public offering) undergoes an initial public offering of its equity (an “IPO”), in which case, Partner’s and its Affiliates’ senior executive management team will be subject to any normal and customary lock-up conditions (if any) to be agreed upon with the lead underwriter of the IPO. If Partner and its board of directors hire an investment banker with respect to or otherwise decide to explore, a CoC Transaction during the Initial Partner Restricted Period or the subsequent two (2) year period, Partner shall provide Bioprojet with prompt written notice thereof, together with the information reasonably requested by Bioprojet to assess such CoC Transaction, and grant Bioprojet a sixty (60) calendar day right of first offer with respect to the equity or assets contemplated to be sold in such CoC Transaction (the “Right of First Offer”). During such sixty (60) calendar day period (as may be extended by written agreement of the Parties), Partner shall exclusively negotiate with Bioprojet in good faith such CoC Transaction; provided; however, that such obligation to negotiate shall in no event be deemed to require Partner to consummate a CoC Transaction with Bioprojet on terms that Partner does not find reasonable in its sole discretion. After expiration of such sixty (60) calendar day Right of First Offer period, Bioprojet will be entitled to participate in any subsequent bidding process along with the other Third Party bidders and will be provided the same information as those Third Party bidders. If any such CoC Transaction is consummated with a Third Party(ies), Partner shall remain obligated with respect to all of its ongoing contractual obligations under this Agreement subsequent to the closing of such CoC Transaction. In addition, except (a) For in the purposes case of this Agreementan IPO or (b) with the prior written consent of Bioprojet, a "Change in Bioprojet’s sole discretion, during the portion of Control" shall be deemed to have taken place if any person other than the Term ending on the fifth (5th) year anniversary of the first NDA approval by the FDA, ▇▇. ▇▇ ▇▇▇▇▇▇ and shall not transfer or assign ownership of more than forty-nine percent (49%) of his equity interest (directly or indirectly) in Partner at Closing; provided, however, that, with respect to a CoC Transaction involving the sale of the equity of Partner, if (i) a buyer requires 100% equity ownership in Partner (including the entire equity interests held by ▇▇. ▇▇ ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined ) be included in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, CoC Transaction and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on Partner’s board of directors determines that it has a fiduciary responsibility to cause the Change sale of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies 100% of the Company and the Executive voluntarily terminates employment within sixty (60) days of any equity in Partner in such occurrence, or the last in a series of occurrencesCoC Transaction, then the Executive ▇▇▇▇ ▇▇▇▇▇▇ shall be permitted to sell his entire equity interests (direct or indirect) in Partner, provided that, in such case and only such case, Bioprojet shall then be entitled to receivea one-time, subject to non-creditable, non-refundable payment of Fifteen Million ($15,000,000) USD by Partner upon the provisions closing of subparagraphs such CoC Transaction. From and after the fifth (e5th) and (f) below, a lump-sum payment equal to 299% year anniversary of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained NDA approval by the Company which became payable after payment of FDA, ▇▇▇▇ ▇▇▇▇▇▇ shall have the lump-sum provided for right to sell his equity interest (either direct or indirect and in paragraph (d), upon whole or as a result of in part) in Partner without Bioprojet’s consent or the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearother restrictions set forth above.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: License and Commercialization Agreement (Harmony Biosciences Holdings, Inc.), License and Commercialization Agreement (Harmony Biosciences Holdings, Inc.)
Change of Control. (a) For Notwithstanding anything herein to the purposes of this Agreementcontrary, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs before the day that is the three year anniversary of the grant date , then the Performance Periods (as defined on Annex B) shall terminate immediately prior to such Change of Control and the number of Restricted Stock Units subject to the Award that shall vest immediately prior to such Change of Control (the "Change of Control DatePayment")) shall be subject to pro-rata vesting and shall equal (i) the number of Restricted Stock Units determined in accordance with Annex B, except that any unvested Restricted Stock Units from the shortened Performance Period for Tranche 1 will not be added to Tranche 2 for purposes of this calculation, based on the Company's actual performance for the shortened Performance Periods, multiplied by (ii) a fraction, the Company will continue numerator of which shall be the number of days during the Performance Periods the Recipient was employed by or rendered services to employ the Executive Company, and the Executive will remain denominator of which shall be the number of days in the employ normal Performance Periods. Any Restricted Stock Units subject to the Award that do not vest after giving effect to the preceding sentences of this Section 3(c) (calculated as the Company for the period commencing on difference between (i) above and the Change of Control Date Payment) shall be converted into time-based restricted stock units (the "Time-Based Restricted Stock Units") for which the Forfeiture Restrictions shall lapse and ending on such Time-Based Restricted Stock Units shall vest according to the expiration original time-based vesting schedule set forth in Annex B (without regard to the market-based vesting component). Furthermore, if the Recipient incurs a Change of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to Control Termination after becoming vested in the Change of Control Date. If after a Change of ControlPayment, the Executive is requested, and, in his sole and absolute discretion, consents Forfeiture Restrictions shall lapse as to change his principal business location, all of the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a grossTime-up of any state or federal taxes payable by Executive as a result of any Based Restricted Stock Units upon such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control DateTermination.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Performance Based Market Stock Unit Award Agreement, Performance Based Market Stock Unit Award Agreement (BMC Software Inc)
Change of Control. (a) For Notwithstanding any other provision contained herein, the purposes of this Agreement, a "Change of Control" Employee's Initial Options and other options issued under the Company's share option plans that are not then exercisable shall become exercisable (and be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3be vested) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (as defined below) of the "Company occurs. In addition, restricted Common Shares granted under any other of the Company's share option plans shall immediately vest upon a Change of Control Date"), of the Company.
(b) If (i) the employment of the Employee is terminated by the Company will continue to employ (or successor thereto) without Serious Cause or (ii) the Executive and the Executive will remain in the employ of Employee terminates employment with the Company (or successor thereto) for Good Reason, in each case within the period commencing on the date that a Change of Control Date is formally proposed to the Company's Board of Directors and ending on the expiration first anniversary of the Termdate on which such Change of Control occurs, then the Employee shall be entitled to exercise receive (in lieu of the benefits described in Section 11): (1) any accrued but unpaid salary, (2) a lump sum payment equal to two times such authority and perform such executive duties Employee's annual base salary as are commensurate with of the authority being exercised and duties being performed by the Executive immediately date of termination, (3) any accrued but unpaid bonus from a prior fiscal year, (4) reimbursement of business expenses incurred prior to the Change date of Control Date. If after termination, (5) travel and housing allowances under Section 9 for one year following the date of termination, (6) reasonable relocation expenses from Bermuda to the United States, together with (7) a gross up of any excise taxes payable by the Employee by reason of such payments occurring in connection with a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive The Employee shall not consent be entitled to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the any benefits or other entitlements under this section unless a Change of Control Dateactually occurs.
(c) During the remaining Term after the A "Change of Control Date, Control" of the Company will shall be deemed to have occurred if, following consummation of the IPO (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth any "person" as such term is defined in Section 3 hereof3(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), and excluding the Company or any of its subsidiaries, a trustee or any fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to an offering of such securities or a corporation owned, directly or indirectly, by shareholders of the Company in substantially the same proportion as their ownership of the Company, is or becomes the "beneficial owner" (as defined in rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's then outstanding securities ("Voting Securities"); (ii) continue employee benefits during any period of not more than two years, individuals who constitute the Board of Directors of the Company (the "Board") as set forth of the beginning of the period and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Section 4 hereof clause (i) or (iii) of this sentence) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at levels least two-thirds (2/3) of the directors then still in effect on the Change of Control Date (but subject to office who either were directors at such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).time or whose election or nomination for election was
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the The provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% this Section 12 shall only apply following the consummation of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofan IPO.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD)
Change of Control. (a) For In the purposes event of this Agreement, a "Change of Control" , subject to Section 10(b) below, the Option shall, upon consummation of such Change of Control, either be assumed or a substantially equivalent option shall be deemed to have taken place if any person other than ▇▇substituted by the successor corporation (or an affiliate thereof). ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇If the Option is assumed or substituted and, collectively within twelve (12) months after the Change of Control, the Optionee is involuntarily terminated from employment with the Company without Cause or immediatelyleaves the Company for Good Reason, including a "group" then such assumed or substituted Option shall become exercisable in full as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% such termination and shall expire upon the earlier of (i) the expiration of the combined voting power Option, or (ii) one year from the date of the then outstanding securities Optionee’s termination of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executiveemployment.
(b) The Company and Executive hereby agree In the event that if Executive the successor corporation does not assume the Option or an equivalent option is in not substituted, then the employ Committee shall provide that one of the Company on following will occur with respect to the date on which Option: (i) the Option will become exercisable in full as of a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately specified time prior to the Change of Control Dateand will terminate immediately prior to the consummation of such Change of Control, except to the extent exercised by the Optionee prior to the consummation of such Change of Control; (ii) the Option shall terminate upon consummation of such Change of Control and the Optionee will receive, in exchange thereof, a cash payment equal to the amount (if any) by which (x) the amount payable in the Change of Control with respect to a share of the Company’s common stock, $.01 par value per share (the “Stock”), multiplied by the number of shares of Stock subject to the Option exceeds (y) the aggregate exercise price of the Option; or (iii) any combination of the above. If after a If, however, following the Change of Control, the Executive Company’s Stock is requested, and, in his sole and absolute discretion, consents to change his principal business locationstill publicly traded, the Company will reimburse the Executive for his relocation expensesOption shall remain in place unchanged.
(c) For purposes of this Section 10, including without limitation“Cause” shall mean (i) willful misconduct, moving expenses(ii) gross neglect, temporary living and travel expenses for (iii) failure to materially perform one’s job duties, (iv) insubordination, (v) acts of moral turpitude, theft or dishonesty, (vi) a time while arranging felony conviction, or (vii) acts that are (or could be expected to move his residence be) damaging or detrimental to the changed locationCompany. “Good Reason” shall mean the Optionee’s title, closing costs, if any, associated with position or job responsibilities have been materially reduced or the sale of Optionee has been assigned duties that are materially different from his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office her duties prior to the Change of Control Date.
(c) During the remaining Term after or which materially impair his or her ability to perform his or her duties as required prior to the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)Control.
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Non Qualified Stock Option Agreement (Amicus Therapeutics, Inc.), Stock Option Agreement (Amicus Therapeutics, Inc.)
Change of Control. (a) For Notwithstanding the purposes foregoing, in the event of this Agreement, a "Change of Control" :
(i) If the purchaser, successor or surviving entity (or parent thereof) in the Change of Control (the “Survivor”) agrees to assume the PUs or replace the PUs with the same type of award with similar terms and conditions, then the following will apply:
(A) If the Change of Control occurs prior to the end of the Performance Period, the Performance Goal shall be deemed to have taken place if any person other than ▇▇been satisfied at the target level, and no modification based on Relative TSR shall be made, regardless of actual performance prior to or after such Change of Control, such that only the Target PUs remain available for vesting under this Award. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) If the Change of Control occurs after the end of the Securities Exchange Act Performance Period, then the Actual Achieved PUs will remain available for vesting under this Award.
(B) Each PU determined under clause (A) above that is assumed by the Survivor shall be appropriately adjusted, immediately after such Change of 1934Control, as amended, becomes to apply to the owner or beneficial owner number and class of securities which would have been issuable to the Participant upon the consummation of such Change of Control had the PUs been actual shares immediately prior to such Change of Control.
(C) Upon termination of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of Participant’s Employment following such Change in Control (1) by the Company that may be cast for and its Affiliates without Cause, or due to death or Disability, or (2) if the election Participant is then or was at the time of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled a Section 16 Participant, by the Executive.
(b) The Company and Executive hereby agree that if Executive is such Section 16 Participant for Good Reason, in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If each case within two years after a Change of Control, any unvested portion of this Award (or the Executive is requested, and, replacement award) shall immediately become vested in his sole and absolute discretion, consents full. Upon termination of the Participant’s Employment following such a Change in Control due to change his principal business locationRetirement, the Company will reimburse provisions of Section 4(c) shall apply.
(ii) To the Executive for his relocation expensesextent the Survivor does not assume the PUs or issue replacement awards as provided in clause (i), including without limitationthen, moving expenses, temporary living and travel expenses for a time while arranging to move his residence immediately prior to the changed location, closing costs, if any, associated with date of the sale Change of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business locationControl, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to Target PUs (or Actual Achieved PUs if the Change of Control Date.
(c) During the remaining Term occurs after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies end of the Company Performance Period) shall become immediately and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereoffully vested.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Cash Settled Performance Unit Award Agreement (Cooper-Standard Holdings Inc.), Cash Settled Performance Unit Award Agreement (Cooper-Standard Holdings Inc.)
Change of Control. (a) For Notwithstanding any other provision contained herein, the purposes of this Agreement, a "Change of Control" Employee's Initial Options and other options issued under the Company's share option plans that are not then exercisable shall become exercisable (and be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3be vested) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (as defined below) of the "Company occurs. In addition, restricted Common Shares granted under any other of the Company's share option plans shall immediately vest upon a Change of Control Date"), of the Company.
(b) If (i) the employment of the Employee is terminated by the Company will continue to employ (or successor thereto) without Serious Cause or (ii) the Executive and the Executive will remain in the employ of Employee terminates employment with the Company (or successor thereto) for Good Reason, in each case within the period commencing on the date that a Change of Control Date is formally proposed to the Company's Board of Directors and ending on the expiration first anniversary of the Termdate on which such Change of Control occurs, then the Employee shall be entitled to exercise receive (in lieu of the benefits described in Section 11): (1) any accrued but unpaid salary, (2) a lump sum payment equal to two times such authority and perform such executive duties Employee's annual base salary as are commensurate with of the authority being exercised and duties being performed by the Executive immediately date of termination, (3) any accrued but unpaid bonus from a prior fiscal year, (4) reimbursement of business expenses incurred prior to the Change date of Control Date. If after termination, (5) travel and housing allowances under Section 9 for one year following the date of termination, (6) reasonable relocation expenses from Bermuda to the United Kingdom, together with (7) a gross up of any excise taxes payable by the Employee by reason of such payments occurring in connection with a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive The Employee shall not consent be entitled to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the any benefits or other entitlements under this section unless a Change of Control Dateactually occurs.
(c) During the remaining Term after the A "Change of Control Date, Control" of the Company will shall be deemed to have occurred if, following consummation of the IPO (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth any "person" as such term is defined in Section 3 hereof3(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), and excluding the Company or any of its subsidiaries, a trustee or any fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to an offering of such securities or a corporation owned, directly or indirectly, by shareholders of the Company in substantially the same proportion as their ownership of the Company, is or becomes the "beneficial owner" (as defined in rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's then outstanding securities ("Voting Securities"); (ii) continue employee benefits during any period of not more than two years, individuals who constitute the Board of Directors of the Company (the "Board") as set forth of the beginning of the period and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Section 4 hereof clause (i) or (iii) of this sentence) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at levels least two-thirds (2/3) of the directors then still in effect on the Change of Control Date office who either were directors at such time or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).iii) the
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the The provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% this Section 12 shall only apply following the consummation of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofan IPO.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD)
Change of Control. (a) For Notwithstanding any other provision contained herein, the purposes of this Agreement, a "Change of Control" Employee's Initial Options and other options issued under the Company's share option plans that are not then exercisable shall become exercisable (and be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3be vested) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (as defined below) of the "Company occurs. In addition, restricted Common Shares granted under any other of the Company's share option plans shall immediately vest upon a Change of Control Date"), of the Company.
(b) If (i) the employment of the Employee is terminated by the Company will continue to employ (or successor thereto) without Serious Cause or (ii) the Executive and the Executive will remain in the employ of Employee terminates employment with the Company (or successor thereto) for Good Reason, in each case within the period commencing on the date that a Change of Control Date is formally proposed to the Company's Board of Directors and ending on the expiration first anniversary of the Termdate on which such Change of Control occurs, then the Employee shall be entitled to exercise receive (in lieu of the benefits described in Section 11): (1) any accrued but unpaid salary, (2) a lump sum payment equal to two times such authority and perform such executive duties Employee's annual base salary as are commensurate with of the authority being exercised and duties being performed by the Executive immediately date of termination, (3) any accrued but unpaid bonus from a prior fiscal year, (4) reimbursement of business expenses incurred prior to the Change date of Control Date. If after termination, (5) travel and housing allowances under Section 9 for one year following the date of termination, (6) reasonable relocation expenses from Bermuda to the United States, together with (7) a gross up of any excise taxes payable by the Employee by reason of such payments occurring in connection with a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive The Employee shall not consent be entitled to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the any benefits or other entitlements under this section unless a Change of Control Dateactually occurs.
(c) During the remaining Term after the A "Change of Control Date, Control" of the Company will shall be deemed to have occurred if, following consummation of the IPO (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth any "person" as such term is defined in Section 3 hereof3(a)(9) and as used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), and excluding the Company or any of its subsidiaries, a trustee or any fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, an underwriter temporarily holding securities pursuant to an offering of such securities or a corporation owned, directly or indirectly, by shareholders of the Company in substantially the same proportion as their ownership of the Company, is or becomes the "beneficial owner" (as defined in rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company's then outstanding securities ("Voting Securities"); (ii) continue employee benefits during any period of not more than two years, individuals who constitute the Board of Directors of the Company (the "Board") as set forth of the beginning of the period and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Section 4 hereof clause (i) or (iii) of this sentence) whose election by the Board or nomination for election by the Company's shareholders was approved by a vote of at levels least two-thirds (2/3) of the directors then still in effect on office who either were directors at such time or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; (iii) the Change shareholders of Control Date (but subject to such reductions as may be required to maintain such plans the Company approve a merger, consolidation or reorganization or a court of competent jurisdiction approves a scheme of arrangement of the Company, other than a merger, consolidation, reorganization or scheme of arrangement which would result in compliance with applicable federal law regulating employee benefits).the Voting
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the The provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% this Section 12 shall only apply following the consummation of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofan IPO.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Global Markets Access LTD), Employment Agreement (Global Markets Access LTD)
Change of Control. (a) For Employee may terminate this Agreement for good reason upon delivery of a Notice of Termination to Employer within a 90-day period beginning on the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, 30th day after the date occurrence of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control DateControl. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's Employee’s employment is terminated by the Company other than for cause (as defined in Section 5 hereof)pursuant to this provision, or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive Employee shall be entitled to receivethe following:
i) Employer shall pay Employee in cash within fifteen (15) days of the date of termination severance compensation in an amount equal to her then current monthly base salary multiplied by 36 plus any bonus earned or accrued through the date of termination (including any amounts awarded for previous years but which were not yet vested);
ii) For a period of 36 months, subject payment of premiums for medical and dental insurance being provided to Employee. Employer’s obligation hereunder with respect to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), foregoing benefits shall be reduced limited to the extent necessary that Employee becomes eligible for any such benefits pursuant to a subsequent employer’s benefit plans, in which case Employer may reduce the coverage of any benefits it is required to provide Employee so that such amounts, when added to such lump-sum, do not exceed 299% long as the aggregate coverage and benefits of the Executive's Base Salary combined benefit plans is no less favorable to Employee that the coverages and benefits required to be provided hereunder; and
iii) The restrictions on any outstanding incentive awards (as computed including restricted stock) granted to Employee under Company’s or Bank’s long-term equity incentive program or other incentive plan or arrangement shall lapse and such awards shall become 100% vested, all stock options and stock appreciation rights granted to Employee shall become immediately exercisable and shall become 100% vested, all performance units granted to Employee shall become 100% vested, and restrictive covenants contained in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunderSection 9(C) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearnot apply to Employee.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Atlantic Bancshares, Inc.), Employment Agreement (Atlantic Bancshares, Inc.)
Change of Control. (a) For the purposes of The parties agree that this Agreement, a "Change of Control" shall be deemed to have taken place if Agreement will not automatically terminate upon any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")Corporation. However, the Company will continue to employ the Executive Corporation and the Executive will remain in acknowledge and agree that both the employ Corporation (or its successor) and the Executive shall have the right to terminate this Agreement within 90 days of the Company for the period commencing on the Change closing of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence on 30 days prior notice to the changed location, closing costs, if any, associated with other party (prior to the sale expiry of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements90 day period). If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the CompanyExecutive's office prior to the Change of Control Date.employment is so terminated:
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue the Corporation shall pay to honor or to the terms order of this Agreementthe Executive the aggregate of the following amounts (less any deductions required by law):
(A) if not theretofore paid, the Executive's Annual Salary for the then current fiscal year of the Corporation for the period to and including Base the Date of Termination; and
(B) an amount equal to the Annual Salary and other compensation set forth (to the extent the termination is by the Corporation the portion of the Annual Salary referred to in Section 3 hereof, and 1.3 (a)(ii) shall be deemed to be the targeted incentive compensation);
(ii) continue employee benefits all options held by the Executive, whether then vested or not, shall immediately become exercisable (and shall remain exercisable as set forth in Section 4 hereof at levels clause 3.1(c)(ii)) in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) event that the Executive's employment is terminated by the Company Corporation (other than for cause Just Cause, Disability or Death) within one year following the completion of the transaction effecting the change of control of the Corporation as contemplated by this Section 3.1(d);
(as defined iii) the Corporation shall not seek in Section 5 hereof)any way to amend the terms of any loans from the Corporation or its subsidiaries to the Executive;
(iv) the Corporation shall provide the Executive with the job relocation counselling services of the firm acceptable to the Corporation for an amount not to exceed $15,000;
(v) if, at the Date of Termination, there were any memberships in any clubs, social or athletic organizations paid for by the Corporation that were for the regular use of the Executive at the Date of Termination, the Corporation will not take any action to terminate such memberships but need not renew any such membership that expires; and
(iivi) there the Corporation shall pay to the Executive all outstanding and accrued vacation pay to the Date of Termination. Upon compliance with clauses (d)(i) through (vi) above, the Corporation shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing no further obligations to the Executive under Section 3 hereof.
(e) The amounts payable to this Agreement or otherwise and the Executive under agrees that notwithstanding any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d)provision contained herein, upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearnot have any right to commence any action for wrongful dismissal or termination.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Jetform Corp), Employment Agreement (Jetform Corp)
Change of Control. (a) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which If a Change of Control occurs (while this Agreement is in effect and one of the "Change of Control Date")events described in Section 2.1 below occurs, the Company Employee shall be entitled to receive the compensation described in Section 2.2 below.
2.1 The events that will continue to employ trigger the Executive and payment of compensation described in Section 2.2 are the Executive will remain in the employ following:
2.1.1 Within 12 months of the Company for the period commencing on the Change of Control Date and ending on the expiration date of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, Employee voluntarily resigns employment for Good Reason; or
2.1.2 Within 24 months of the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale date of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control DateControl, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the ExecutiveEmployee's employment is terminated by the Company for a reason other than for cause (as defined death, Disability or Cause.
2.2 If a Change of Control and one of the events described in Section 5 hereof)2.1 occur, or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive Employee shall be entitled to receivereceive the following compensation ("Change of Control Compensation"):
2.2.1 The Company shall pay Employee in cash a single lump sum payment in an amount equal to 3.0 times the sum of (A) Employee's annual base salary (including any deferrals) at the rate in effect immediately preceding the date of the Change of Control and (B) the "Bonus Amount" which shall be equal to the targeted annual bonus paid or payable to Employee (including any amounts which were or will be deferred) in respect of the fiscal year in which the Change of Control occurs, regardless of whether the target would have been met, exceeded or not met. The payment provided for in this Section 2.2.1 shall be made not later than 30 days after the date of the termination of such employment.
2.2.2 This paragraph is not intended as a limitation on any benefits Employee may be entitled to under any plans, policies or programs of the Company. For a period of 36 months from the date of termination of such employment, the Company, at the Company's expense, shall provide Employee with health, medical, dental, long-term disability and life insurance coverage and any other fringe benefits to the same extent to which Employee was covered under the Company's group plans, policies and programs (and any supplemental plans) on the date immediately preceding the date of a Change of Control. To the extent Employee is not eligible under the terms of the applicable plan, the Company shall provide other substantially similar coverage. To the extent the Employee is eligible for benefits under the Consolidated Omnibus Reconciliation Act of 1985 ("COBRA"), all COBRA benefits shall be in addition to the period of benefits provided above. The Employee shall receive these benefits subject to the provisions same terms and conditions of subparagraphs (e) other eligible individuals including the payment of all deductibles and (f) below, a lumpco-sum payment equal payments. The Company's obligation with respect to 299% of Executive's current Base Salary in addition to any other compensation that may such benefits shall be due and owing satisfied to the Executive under Section 3 hereof.
(e) The amounts payable extent that Employee obtains similar benefits pursuant to a subsequent employer's benefit plan. Also, Employee shall have the Executive under option to have assigned to Employee at no cost and with no apportionment of prepaid premiums, any other compensation arrangement maintained assignable insurance policy owned by the Company which became payable after payment and relating specifically to Employee. Further, in the event of the lump-sum provided for in paragraph (d), upon or as a result occurrence of one of the exercise events described in Section 2.1.1 or Section 2.1.2, Employee shall receive (i) if the Employee is a participant in The Midland-Guardian Co. Salaried Employees Pension Plan ("Pension Plan") the value of 3 additional years of service under the Pension Plan as determined by Executive using an interest rate and mortality table prescribed by Regulation Section 1.417(e)-1(d) or its successor provision and the value of rights which are contingent on 3 additional years of service if he is also a Change participant in The Midland Company Supplemental Retirement Plan; (ii) if Employee is a participant in The Midland-Guardian Co. Self-Directed Retirement Plan the value of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced 3 additional calendar years of Company contributions equal to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 2995% of the ExecutiveEmployee's Base Salary (as computed in accordance with provisions compensation at the time of the Internal Revenue Code occurrence of 1986, as amended one of the events described in Section 2.1.1 or Section 2.1.2 and any regulations promulgated thereunderthe value of 3 additional calendar years of contributions if he is also a participant in The Midland-Guardian Co. Nonqualified Self-Directed Retirement Plan; or (iii) for determining whether if Employee is a participant in The Midland-Guardian Co. Salaried Employees 401(k) Savings Plan (the Executive has received an excess parachute payment. Any such excess amount shall be deferred "401(k) Plan") the value of 3 additional years of 401(k) contributions and paid Company matching contributions that would have been made under the 401(k) Plan and the value of 3 additional years of contributions if Employee is also a participant in the next tax yearThe Midland-Guardian Co. Salaried Employees Nonqualified Savings Plan.
(f) In the event of a proposed Change in Control2.2.3 If requested, the Company will allow pay the Executive cost of outplacement services for the benefit of Employee, provided, however, the amount payable by the Company for such services shall not exceed $25,000. The Employee can elect to participate receive this payment in all meetings cash in a single lump sum in lieu of applying it to the cost of outplacement services.
2.2.4 If more than one Change of Control shall occur during the term of this Agreement, Employee will be entitled to Change of Control Compensation only once.
2.3 The Change of Control Compensation provided in this Agreement shall be offset by any other severance pay to which Employee shall be entitled under any other Company plan, program or policy which is specifically designated by the Company for the purpose of providing severance.
2.4 In addition to the Change of Control Compensation, Employee shall also be entitled to the following upon termination of the Employee's employment or the Employee's resignation for the reasons provided in Section 2.1.
2.4.1 A lump sum cash payment in an amount equal to the amount of any unpaid base salary through the termination of such employment.
2.4.2 A lump sum in an amount equal to a pro-rata portion of the annual Bonus Amount, based on the number of days which have elapsed in the fiscal year in which termination of such employment occurs. This pro rated amount shall be based on the target amount regardless of actual performance. The Bonus Amount shall be determined by multiplying the target bonus by the number of days worked divided by 365.
2.4.3 A lump sum cash payment in an amount equal to any accrued (but not taken) vacation calculated through the effective date of termination of such employment.
2.4.4 Any other payments or benefits which employees are entitled to receive under the Company's plans, programs, and negotiations related theretopolicies in effect upon termination of such employment.
2.4.5 The payments provided in Section 2.4 shall be made not later than 30 days after the date of the termination of such employment.
2.5 All amounts paid to Employee under this Agreement shall be subject to withholding for federal, state, local and Federal Insurance Contributions Act ("FICA") taxes and such other payroll deductions as required pursuant to any applicable law and regulation.
2.6 All payments due under any other plan, program or policy of the Company including, but not limited to, stock options, stock awards and nonqualified plans shall be paid in accordance with the terms of the applicable plan.
Appears in 2 contracts
Sources: Employee Retention Agreement (Midland Co), Employee Retention Agreement (Midland Co)
Change of Control. Upon a Change in Control, the Company shall: -------------------
(a) For Cause 50% of any unexercisable installments of any stock options held by the purposes Officer on the Change of this Agreement, a "Control that have not expired to become exercisable on the Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a such acceleration -------- ------- of exercisability shall not occur to the extent that: (i) the Change of Control shall not is intended to be deemed to have occurred if the person who becomes the owner accounted for as a pooling of more that 50% of the combined voting power of interests; and (ii) the Company is concludes, after consulting with its independent accountants, that such acceleration would prevent the Executive or an entity (or entities) controlled by the Executive.Change of Control transaction from being accounted for as a pooling of interests for financial accounting purposes; and
(b) The Company and Executive hereby agree that if Executive is Cause the period after a termination of employment within which any option may be exercised by the Officer in accordance with the employ provisions of the Company on relevant option agreement and option plan to be extended to twelve months; provided, however, that such extension of exercisability shall not occur to the date on which a Change of Control occurs --- ------- extent that: (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on i) the Change of Control Date is intended to be accounted for as a pooling of interests; and ending on (ii) the expiration Company concludes, after consulting with its independent accountants, that such extension of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to exercisability would prevent the Change of Control Datetransaction from being accounted for as a pooling of interests for financial accounting purposes. If after a provided, however, that: (i) the Company's obligation to provide any of the -------- ------- amounts and benefits set forth in this Section 1 shall be subject to, and conditioned upon, the Officer's execution, on or before the Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents of a full release of claims satisfactory to change his principal business location, the Company will reimburse releasing the Executive for his relocation expensesCompany and its affiliates, including without limitationsubsidiaries, moving expensesdivisions, temporary living directors, employees and travel expenses for a time while arranging to move his residence agents from any claims arising from or related to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state Officer's employment or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate severance from employment with the Company's office prior , including any claims arising from this Agreement, such release to be substantially in the Change form of Control Date.
Exhibit A hereto (cthe --------- "Release"); and (ii) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms notwithstanding any other provision of this Agreement, including Base Salary the Company shall not be obligated to provide any of the amounts and other compensation benefits set forth in this Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on 1 until any applicable period within which the Change of Control Date (but subject to such reductions as Officer may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)revoke the Release has expired.
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Option Acceleration Agreement (Mathsoft Inc), Option Acceleration Agreement (Mathsoft Inc)
Change of Control. (a) For Notwithstanding Section 6 above, the purposes following provisions shall apply to the Award in the event of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change Second Vesting Date:
(a) In the event of Control Date. If after a Change of Control, the Executive is requestedsurviving or successor entity (or its parent corporation) may continue, and, in his sole and absolute discretion, consents to change his principal business location, assume or replace the Company will reimburse Restricted Stock Units outstanding as of the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale date of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Dateon substantially the same terms and conditions (with such adjustments as may be required or permitted by Section 4.6 of the Plan), and such Restricted Stock Units or replacements therefor shall remain outstanding and be governed by their respective terms, subject to (c) and (d) below.
(b) If and to the extent that the outstanding Restricted Stock Units are not continued, assumed or replaced in connection with a Change of Control, then all unvested Restricted Stock Units will become immediately vested and non-forfeitable and payable as of the date of the Change of Control.
(c) During If and to the remaining Term extent that the Restricted Stock Units are continued, assumed or replaced under the circumstances described in (a), and if within two years after the Change of Control Datethe Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason, then all unvested Restricted Stock Units will become immediately vested and non-forfeitable and payable as of the Company will (i) continue to honor the terms date of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change termination of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)employment.
(d) If Notwithstanding whether an Award is continued, assumed or replaced in connection with a Change of Control, if Grantee experiences an involuntary termination of employment or other service for reasons other than Cause or Grantee shall terminate employment with Good Reason during the remaining Term period beginning on the date an agreement is entered into by the Company with respect to a merger, consolidation or after similar transaction of the Company, which would constitute a Change of Control, and the effective time of such merger, consolidation or similar transaction of the Company, then all unvested Restricted Stock Units will become immediately vested and non-forfeitable and payable as of the date of the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofControl.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Restricted Stock Unit Award Agreement (Methode Electronics Inc), Restricted Stock Unit Award Agreement (Methode Electronics Inc)
Change of Control. (a) For the purposes of this Agreement, If a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" (as that term is defined in Section 13(d)(3) that certain Indenture dated as of March 3, 1993, by and between the Securities Exchange Act Company and United States Trust Company of 1934New York, as amendedtrustee, becomes the owner or beneficial owner of in connection with the Company's securities8% Senior Notes due 2008) occurs during the Employment Period and, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, this Agreement or the Executive Employee's employment is requestedterminated for any reason, andor the Employee resigns his employment because any of the Employee's position, in powers, duties or responsibilities under Section 2 above are changed without his sole and absolute discretionagreement, consents or any compensation or benefit payable or otherwise extended to change his principal business locationthe Employee hereunder (including without limitation Salary, the Company will reimburse the Executive for his relocation incentive bonus, expenses, including without limitation, moving expenses, temporary living fringe benefits and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation automobile set forth in Section 3 hereofabove) is eliminated or reduced, and the Company or its successor in interest shall:
(i) give prompt notice to the Employee of any such termination, change, elimination or reduction;
(ii) within thirty (30) days after the Termination Date, pay to the Employee (or in the event of the Employee's subsequent death, such person as the Employee shall have designated in a notice filed with the Company, or, if no such person shall have been designated, to his estate) a lump sum amount equal to the Employee's Salary in effect as of the Termination Date, which lump sum amount shall not be pro-rated and shall be paid in addition to the Salary due and payable under (iii) below;
(iii) until the Expiration Date, continue employee to pay to the Employee (or in the event of the Employee's subsequent death, such person as the Employee shall have designated in a notice filed with the Company, or, if no such person shall have been designated, to his estate) his Salary (in effect as of the date of the Change of Control), and to extend to him the incentive bonus, expenses, fringe benefits as and automobile set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies 3 above. The obligations of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled pursuant to receive, subject to the provisions of subparagraphs this Section 4 (e) and (f) below, a lump-sum payment equal to 299% shall survive any termination of Executivethis Agreement or the Employee's current Base Salary in addition to employment or any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained resignation of such employment by the Company which became payable after payment of the lump-sum provided for in paragraph (dEmployee pursuant to this Section 4(e), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Be Aerospace Inc), Employment Agreement (Be Aerospace Inc)
Change of Control. (a) For the purposes of this Agreement, If a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" (as that term is defined in Section 13(d)(3) that certain Indenture dated as of March 3, 1993, by and between the Securities Exchange Act Company and United States Trust Company of 1934New York, as amendedtrustee, becomes the owner or beneficial owner of in connection with the Company's securities9 3/4% Senior Notes due 2003) occurs during the Employment Period and, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, this Agreement or the Executive Employee's employment is requestedterminated for any reason, andor the Employee resigns his employment because any of the Employee's position, in powers, duties or responsibilities under Section 2 above are changed without his sole and absolute discretionagreement, consents or any compensation or benefit payable or otherwise extended to change his principal business locationthe Employee hereunder (including without limitation Salary, the Company will reimburse the Executive for his relocation incentive bonus, expenses, including without limitation, moving expenses, temporary living fringe benefits and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation automobile set forth in Section 3 hereofabove) is eliminated or reduced, and the Company or its successor in interest shall:
(i) give prompt notice to the Employee of any such termination, change, elimination or reduction;
(ii) within thirty (30) days after the Termination Date, pay to the Employee (or in the event of the Employee's subsequent death, such person as the Employee shall have designated in a notice filed with the Company, or, if no such person shall have been designated, to his estate) a lump sum amount equal to the Employee's Salary in effect as of the Termination Date, which lump sum amount shall not be pro-rated and shall be paid in addition to the Salary due and payable under (iii) below;
(iii) until the Expiration Date, continue employee to pay to the Employee (or in the event of the Employee's subsequent death, such person as the Employee shall have designated in a notice filed with the Company, or, if no such person shall have been designated, to his estate) his Salary (in effect as of the date of the Change of Control), and to extend to him the incentive bonus, expenses, fringe benefits as and automobile set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies 3 above. The obligations of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled pursuant to receive, subject to the provisions of subparagraphs this Section 4 (e) and (f) below, a lump-sum payment equal to 299% shall survive any termination of Executivethis Agreement or the Employee's current Base Salary in addition to employment or any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained resignation of such employment by the Company which became payable after payment of the lump-sum provided for in paragraph (dEmployee pursuant to this Section 4(e), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (Be Aerospace Inc), Employment Agreement (Be Aerospace Inc)
Change of Control. (a) For Notwithstanding the purposes foregoing, in the event of this Agreement, a "Change of Control" :
(i) If the purchaser, successor or surviving entity (or parent thereof) in the Change of Control (the “Survivor”) agrees to assume the PUs or replace the PUs with the same type of award with similar terms and conditions, then the following terms and conditions shall apply:
(A) If the Change of Control occurs prior to the end of the Performance Period, the Performance Goals shall be deemed to have taken place if any person other than ▇▇been satisfied at the target level, regardless of actual performance prior to or after the Change of Control, such that only the Target PUs remain available for vesting under this Award. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) If the Change of Control occurs after the end of the Securities Exchange Act Performance Period, then the Actual Achieved PUs will remain available for vesting under this Award.
(B) Each PU determined under clause (A) above that is assumed by the Survivor shall be appropriately adjusted, immediately after the Change of 1934Control, as amended, becomes to apply to the owner or beneficial owner number and class of securities which would have been issuable to the Participant upon the consummation of the Company's securities, after Change of Control had the date PUs been actual shares immediately prior to such Change of this Agreement, having more than 50% Control.
(C) Upon termination of the combined voting power Participant’s Employment following such Change of the then outstanding securities of Control (1) by the Company that may be cast for or its Affiliates without Cause, or due to Participant’s death or Disability, or (2) if the election Participant is then or was at the time of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control a Section 16 Participant, by such Section 16 Participant for Good Reason, in each case within two years after the Change of Control, any unvested portion of this Award (or the replacement award) shall not be deemed immediately become vested in full (subject to have occurred if the person who becomes the owner of more that 50% any delay required pursuant to Section 19 of the combined voting power Plan). Upon termination of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which Participant’s Employment following a Change of Control occurs due to Retirement, the provisions of Section 4(c) shall apply.
(ii) To the "Change of Control Date"extent the Survivor does not assume the PUs or issue replacement awards as provided in clause (i), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Termthen, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change date of Control Date. If after a the Change of Control, the Executive is requestedTarget PUs or Actual Achieved PUs, and, as applicable (determined in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation manner set forth in Section 3 hereof, and (iiclause 4(c)(i)(A) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunderabove), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended become immediately and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearfully vested.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Performance Unit Award Agreement (Cooper-Standard Holdings Inc.), Performance Unit Award Agreement (Cooper-Standard Holdings Inc.)
Change of Control. After a Change of Control as set forth herein, if the Executive subsequently suffers a Termination of Employment, voluntary or involuntary, except for cause, then the Executive’s beneficiary(ies) shall be entitled to receive the benefits in Paragraph VI (aA) as if the Executive had been employed by the Bank at the time of death.
(A) For the purposes of this Agreement, a "Change of Control" Control shall be deemed to have taken place if mean:
1. The acquisition by any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇one or more individuals, collectively entities or immediately, including a "group" as defined in groups (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amendedamended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of either (i) the then outstanding shares of common stock of the Holding Company (the then outstanding shares of common stock of the Holding Company (the “Outstanding Holding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Holding Company entitled to vote generally in the election of directors (the “Outstanding Holding Company Voting Securities”). Irrespective of the foregoing, becomes however, any transfer made as the owner result of the death of a shareholder whereby said shares pass to a beneficiary as designated under the shareholder’s duly probated Last Will and Testament, or as a result of intestacy should the deceased shareholder not have a duly probated Last Will and Testament, or by joint tenancy should the shares be owned by the deceased shareholder jointly with a spouse, or deceased shareholder’s issue, shall not be deemed to be a transfer for purposes of determining a change of control as set forth in this section. In addition, any transfer made by a shareholder which has been consented to by the Executive within thirty (30) days of said transfer, or which occurred more than three (3) years previously, shall be excluded from any computation of Change of Control under the provisions of this section. Any such transfer by death or approved transfer by Executive is hereinafter referred to as an “Exempt Transfer”; or
2. Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Holding Company’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms as used in Rule 14a-ll of Regulation 14A promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Board; or
3. Approval by the shareholders of the Holding Company of a reorganization, merger or consolidation, in each case, unless, following such reorganization, merger or consolidation, (i) more than 65% of, respectively, the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owner owners, respectively, of the Outstanding Holding Company Common Stock and the Outstanding Holding Company Voting Securities immediately prior to such reorganization, merger or consolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation of the Outstanding Holding Company Common Stock and Outstanding Holding Company Voting Securities, as the case may be (excepting the exempt transfers noted in (1) above, (ii) no Person (excluding the Holding Company, any employee benefit plan (or related trust) of the Holding Company, or such corporation resulting from such reorganization, merger or consolidation, and any Person beneficially owning, immediately prior to such reorganization, merger or consolidation, directly or indirectly, 35% or more of the Outstanding Holding Company Common Stock or Outstanding Holding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 35% or more of, respectively, of the then outstanding shares of common stock of the corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities of such corporation, and (iii) at least a majority of the members of the board of directors of the corporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the initial agreement providing for such reorganization, merger or consolidations; or
4. Approval by the shareholders of the Holding Company of (i) a complete liquidation or dissolution of the Holding Company or (ii) the sale or other disposition of all or substantially all of the assets of the Holding Company, other than to a corporation, with respect to which following such sale or other disposition, (a) more than 65% of, respectively, the then outstanding shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors in then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Holding Company Common Stock and the Outstanding Holding Company Voting Securities immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Holding Company Common Stock and the Outstanding Holding Company Voting Securities, as the case may be, (b) no Person (excluding the Holding Company and any employee benefit plan (or related trust) of the Holding Company, or such corporation and any Person beneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 35% or more of the Outstanding Holding Company Common Stock or the Outstanding Holding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 35% or more of, respectively, of the then outstanding voting shares of common stock of such corporation and the combined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors and (c) at least a majority of the members of the board of directors of such corporation were members of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other disposition of assets of the Holding Company; or
5. The issuance or transfer of sufficient shares of stock, or a merger, reorganization or consolidation, which results in (i) more than 50% of the then outstanding shares of common stock of the Company's securities, after the date of this Agreement, or (ii) securities having more than 50% of the combined voting power of the then outstanding voting securities of the Company that may be cast for entitled to vote generally in the election of directors of the Company (directors, being owned by other than as a result of an issuance of the Holding Company or persons who owned securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of having more that 5065% of the combined voting power of the outstanding voting securities of the Holding Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is entitled to vote generally in the employ election of directors of the Holding Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
transaction (c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits but expressly excluding Exempt Transfers as set forth in Section 4 hereof at levels in effect on the Change of Control Date subparagraph (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)1) herein.
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Endorsement Method Split Dollar Plan Agreement (Lyons Bancorp Inc), Endorsement Method Split Dollar Plan Agreement (Lyons Bancorp Inc)
Change of Control. (a) For the purposes of this Agreement, The Company shall not enter into or be party to a "Change of Control" shall be deemed Control of the type referred to have taken place if any person in clauses and (1) or (5) of the definition of such term in Section 14 unless the Successor Entity assumes in writing all of the obligations of the Company under this Warrant and the other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" Transaction Documents (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Purchase Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from ) in accordance with the provisions of this Section 8 by subsequent 3 pursuant to written agreement agreements in form and substance reasonably satisfactory to the Required Holders, including agreements to deliver to each holder of SPA Warrants in exchange for such SPA Warrants a security of the Executive); provided, however, that Successor Entity evidenced by a Change of Control shall not be deemed written instrument substantially similar in form and substance to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company this Warrant exercisable for the period commencing on Adjusted Warrant Consideration (as defined below). Upon the Change occurrence of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a any Change of Control, the Executive is requestedSuccessor Entity, andif other than the Company, shall succeed to, and be substituted for (so that from and after the date of such Change of Control, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation of any Change of Control, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon exercise of this Warrant at any time after the consummation of the Change of Control, in his sole lieu of the Common Stock (or other securities, cash, assets or other property) purchasable upon the exercise of the Warrant prior to such Change of Control, such shares of stock, securities, cash, assets or any other property whatsoever (including warrants or other purchase or subscription rights) which the Holder would have been entitled to receive upon the happening of such Change of Control had this Warrant been converted immediately prior to such Change of Control, as adjusted in accordance with the provisions of this Warrant (provided that, if the type or amount of shares of stock, securities, cash, assets or any other property whatsoever receivable upon such Change of Control is more than a single type of consideration (determined based in part upon any form of stockholder election), then the type and absolute discretionamount of consideration will be deemed to be the weighted average of the kind and amounts of consideration received by the holders of the Company’s Common Stock that affirmatively make such an election) (the “Adjusted Warrant Consideration”). In addition to and not in substitution for any other rights hereunder, consents prior to change his principal business locationthe consummation of any Change of Control pursuant to which holders of Common Stock are entitled to receive securities or other assets with respect to or in exchange for Common Stock (a “Corporate Event”), the Company shall make appropriate provision to ensure that the Holder will reimburse thereafter have the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a right to receive upon an exercise of this Warrant at any time while arranging to move his residence to after the changed location, closing costs, if any, associated with the sale consummation of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control but prior to the Warrant Expiration Date.
, in lieu of the Common Stock (cor other securities, cash, assets or other property) During purchasable upon the remaining Term after exercise of this Warrant prior to such Change of Control, the Adjusted Warrant Consideration. Provision made pursuant to the preceding sentence shall be in form and substance reasonably satisfactory to the Required Holders. In connection with any Change of Control Datein which all holders of Common Stock and securities convertible into, exercisable for and exchangeable for Common Stock are solely to receive in such Change of Control cash and/or securities of an entity that is not a publicly traded corporation whose capital stock is quoted on or listed on a securities exchange or quotation system in exchange for such securities, the Company will (i) continue shall have the right to honor require the terms Holder to sell, and the Holders shall have the option to require the Company to purchase, all or any portion of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof Warrant for cash payable at levels in effect on the consummation of such Change of Control Date (but subject in an amount equal to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change greater of Control Date (i) the Executive's employment is terminated by product of (a) the Company other than total number of shares for cause which this Warrant may be exercised and (as defined b) the difference between the Exercise Price then in Section 5 hereof), effect and the consideration per share received in such Change of Control or (ii) there the product of (1) the remaining unexercised portion of this Warrant, on the date of such consummation which value shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies be determined by use of the Company and the Executive voluntarily terminates employment within sixty Black-Scholes Option Pricing Model reflecting (60a) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of this Warrant as of such date of request and (b) an expected volatility equal to the greater of 60% and, to the extent applicable, the 100 day volatility obtained from the historical price volatility function on Bloomberg and (2) the total number of shares for which this Warrant may be exercised. The provisions of subparagraphs (e) this Section shall apply similarly and (f) below, a lump-sum payment equal equally to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a successive Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G Corporate Events and regulations thereunder), shall be reduced applied without regard to any limitations on the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% exercise of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearthis Warrant.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Warrant Agreement (I2 Technologies Inc), Warrant Agreement (I2 Technologies Inc)
Change of Control. (a) For 8.1 This Section 8 shall become effective, but not operative, immediately upon the purposes of this AgreementCommencement Date and shall remain in effect so long as the Employee remains employed hereunder by the Corporation, but shall not be operative unless and until there has been a "Change of in Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 19348.4 hereof. Upon such a Change in Control, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that shall become operative immediately.
8.2 If a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (i) while the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed Employee is employed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof)Corporation hereunder, or (ii) there shall have occurred a material reduction in Executivesubsequent to the Termination Date of the Employee's compensation or employment related benefitshereunder other than by the Corporation for cause, or a material change in Executive's statusdeath or disability, working conditions and prior to the later of the first anniversary of such Termination Date or management responsibilitiesthe third anniversary of the Commencement Date, or a material change in the business objectives or policies (iii) within 180 days of the Company Scheduled Termination Date, the Employee may, in his sole discretion, within twelve (12) months after the date of the Change in Control, give notice to the Corporation that he intends to elect to exercise his rights under this Section 8 (the "Notice of Intention"). Within thirty (30) days after the Corporation's receipt of the Notice of Intention, the Corporation shall provide written notice to the Employee setting forth the Corporation's computation of the amount that would be payable pursuant to Section 8.3, accompanied by the written opinion of the Corporation's independent certified public accountants confirming the Corporation's computation. If the Employee takes exception to the Corporation's computation of such amount, the Employee may (but shall not be prejudiced in this right to later contest the amount actually paid by failure to do so) give a further written notice to the Corporation setting forth in reasonable detail the Employee's exceptions to the Corporation's computation, accompanied by the written opinion of the Employee's tax advisor confirming the basis for such exceptions. Exercise by the Employee of his rights pursuant to this Section 8 shall only be made by giving further notice to the Corporation (the "Notice of Exercise") within six (6) months from the date of the Notice of Intention.
8.3 If the Employee gives the Notice of Exercise described in Section 8.2 to the Corporation, the Termination Date of his employment hereunder shall then occur; all outstanding stock options which are not then exercisable shall immediately become exercisable in full; and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive Corporation shall be entitled to receive, subject pay to the provisions of subparagraphs (e) and (f) below, Employee a lump-lump sum payment amount equal to 299% of Executive$1.00 less than three (3) times the Employee's current Base Salary in addition to any other compensation that may be due and owing to the Executive under "base amount" (as defined by Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d280(G), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder)Part IX, shall be reduced to the extent necessary so that such amountsSubchapter B, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions Chapter 1 of the Internal Revenue Code of 1986, as amended amended). The Corporation shall, within ten (10) business days after the date of the Notice of Exercise, deliver to the Employee its cashier's check in the amount payable pursuant to this Section 8.3, and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any payment of such excess amount shall be deferred terminate the Employee's rights to receive any and paid all other compensation, reimbursements, indemnification, or benefits under this Agreement, other than those which are payable to or have accrued to the Employee as described in Section 7.6.
8.4 For the purposes of this Agreement, a Change in Control shall mean (i) a reportable change in control under the proxy rules of the Securities and Exchange Commission, including the acquisition of a 30% beneficial voting interest in the next tax Corporation (other than such acquisition by Employee or an affiliate of Employee), or (ii) a change in any calendar year of such number of directors as constitutes a majority of the board of directors of the Corporation, unless the election, or the nomination for election by the Corporation's shareholders, of each new director was approved by a vote of at least two-thirds (2/3) of the directors then in office who were directors at the beginning of the calendar year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 2 contracts
Sources: Employment Agreement (U S Liquids Inc), Employment Agreement (U S Liquids Inc)
Change of Control. (a) For the purposes of this Agreement, a A "Change of in Control" shall be deemed to have taken place occurred if (i) in the context of a single event or series of related events, more than 50% of the voting power of Employer's outstanding securities entitled to vote in elections of directors shall be acquired by any person other than ▇▇. ▇▇▇▇▇▇ (as such term is used in Sections 13(d) and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(314(d) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company () other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the any person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof)includes Employee, or (ii) there shall have occurred as the result of a material reduction in Executive's compensation tender offer, merger, consolidation, sale of assets or employment related benefitscontested election, or any combination of such transactions, the persons who were directors of Employer immediately before the transaction shall cease to constitute a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies majority of the Company and the Executive voluntarily terminates employment within sixty (60) days Board of Directors of Employer or any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled successor to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute paymentEmployer. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in ControlControl and any Change in Control Qualifying Event (as herein defined) shall occur, Employee shall be permitted to terminate his employment within six (6) months of such Change in Control Qualifying Event and notwithstanding such termination, Employee shall be entitled to receive his Base Salary for the Company remaining Term of this Agreement. In addition, any stock options granted to Employee pursuant to this Agreement shall immediately vest as of such termination date; however, Employee shall not be eligible to receive any bonus earned pursuant to Section 3(c) of this Agreement for any quarter beyond the quarter in which Employee's employment is terminated. For purposes hereof, a Change in Control Qualifying Event shall include (i) a significant diminution, without mutual agreement of the parties, in the nature and scope of Employee's authority, power, functions or duties, (ii) Employer assigns to Employee, without mutual agreement of the parties, substantial additional duties or responsibilities which are inconsistent with the duties of Employee under this Agreement, or (iii) Employer transfers Employee from the principal office of Employer. Employer and Employee agree that if sEmployee does a spin-off initial public offering of e-DOCS Health Care Information Services, Inc., and none of the circumstances described in subsections (i), (ii) or (iii) above apply, such transaction will allow not be a Change of Control for purposes of this Section 20. Employer and Employee further agree that notwithstanding the Executive to participate foregoing provisions of this Section 21, there will be no Change of Control Qualifying Event if Employee and/or his controlled entities in their capacities as shareholders of Employer vote in favor of such transaction that results in a Change of Control if such transaction is an all meetings and negotiations related theretocash transaction."
Appears in 1 contract
Sources: Employment Agreement (Applied Voice Recognition Inc /De/)
Change of Control. (a) In the event of a Change of Control (as defined herein), and if, subsequent to such Change of Control,
(i) the Employee’s job duties, job location and/or compensation (including his base Salary, and Bonus), are not substantially similar to those performed and/or enjoyed by the Employee prior to such Change of Control, and the Employee terminates this Agreement by giving at least thirty (30) days prior written notice to the Company; or
(ii) the Company terminates this Agreement without Cause (as defined in Section 10 above), then the Company must provide the Employee with the following:
(a) the Employee’s base Salary through the date of termination at the rate in effect on the date of the Change of Control, plus any accrued but unused vacation time;
(b) severance pay in the amount of the Employee’s annual base Salary for six (6) months at the rate in effect on the date of the Change of Control;
(c) health insurance coverage for a one (1) year period following the date of termination that is the same or substantially similar to that provided to the Employee while employed by the Company at substantially the same cost to the Employee;
(d) immediate vesting of all of the Employee Restricted Stock, to the extent not already vested, such that the Company’s repurchase rights under Section 3(c)(ii) shall be forfeited;
(e) an acceleration of vesting equal to one year for the stock options awarded to the Employee, which shall become immediately exercisable and which shall remain exercisable for the periods specified in the underlying stock option agreement; and
(f) the unpaid balance under the Promissory Note. For the purposes of this AgreementSection 11(a), a "Change of Control" the Employee’s job location shall be deemed to have taken place if any person other than “substantially similar” so long as the Employee’s job location is located within a fifty (50) mile radius of the Company’s current offices located at ▇▇ ▇▇. ▇▇▇▇▇▇▇▇ and ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇, collectively or immediately▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) As used herein, including a "group" as defined in Section 13(d)(3) “Change of Control” shall be deemed to occur at any time following the consummation of the Securities Exchange Act Merger Transaction, if: the shareholders of 1934the Company approve, as amendedother than the Merger Transaction, becomes (A) any consolidation or merger of the owner or beneficial owner Company (x) where the shareholders of the Company's securities, immediately prior to the consolidation or merger, would not, immediately after the date of this Agreementconsolidation or merger, having beneficially own, directly or indirectly, shares representing in the aggregate more than fifty percent (50% %) of the combined voting power of all the then outstanding securities of the Company that may be cast for corporation issuing cash or securities in the election consolidation or merger (or of directors its ultimate parent corporation, if any), or (y) where the members of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); providedBoard, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change consolidation or merger, would not, immediately after the consolidation or merger, constitute more than fifty percent (50%) of Control Date. If after a Change the Board of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse issuing cash or securities in the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costsconsolidation or merger (or of its ultimate parent corporation, if any), associated with the sale (B) any sale, lease, exchange or other transfer (in one transaction or a series of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of transactions contemplated or arranged by any state or federal taxes payable by Executive party as a result single plan) of any such reimbursements. If all or substantially all of the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies assets of the Company and or (C) any plan or proposal for the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, liquidation or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment dissolution of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearCompany.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Change of Control. (a) For 3.1 Notwithstanding article 1.2 of the purposes Employment Agreement if within the period of this Agreement, 24 months following a "Change of Control" Control and subject to clause 3.3 either:
(i) the Company serves notice on the Executive to terminate the Employment Agreement whether or not with immediate effect (for any reason save those stated at article 2.1 of the Employment Agreement); or
(ii) the Executive is constructively dismissed by the Company (which, without prejudice to the generality of the foregoing, shall be deemed to have taken place if any occurred where the Executive does not receive from the person who effects the Change of Control either confirmation that his employment with the Company shall continue on the terms set out in Employment Agreement or where the Executive does not receive within six months of the Change of Control from the Person who effects the Change of Control suitable alternative employment which is overall no less beneficial to the Executive than his employment under the Employment Agreement. Suitable alternative employment must include, but not be limited to, an equivalent remuneration package (in terms of fixed salary, an opportunity to earn bonus and other benefits (including pension) and an equivalent position to that held by the Executive prior to the Change of Control); then the Executive shall receive the Package (as stated in clause 3.2) within 20 days of the date on which the condition is satisfied (“Termination Date”);
3.2 The Package shall comprise the following:-
(i) a payment equal to the target Contractual Bonus pro rata the period served in the financial year (in which the Termination Date occurs) to the Termination Date;
(ii) continued provision of private health insurance and life insurance for the Separation Period on the terms provided at Articles 3.2 and 3.3 of Addendum A of the Employment Agreement (in the event that the Company is precluded from continuing such provision it shall provide the Executive with a cash sum equal to such amount as would enable the Executive to purchase such provision). The provision of such benefit shall cease to the extent that the Executive is already receiving or receives an equivalent benefit from a source other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including the Company;
(iii) a "group" payment equal to the Base Salary payable as defined in Section 13(d)(3) at the Termination Date for the duration of the Securities Exchange Act Separation Period;
(iv) a payment equal to the target Contractual Bonus payable as at the Termination Date for the duration of 1934the Separation Period;
(v) a payment equal to the difference between (i) value of the benefits to which the Executive would be entitled under the pension arrangements described at Article 3.3 of Addendum A of the Employment Agreement if the Executive had continued working for the Company during the Separation Period, and (ii) the value of the benefits to which the Executive is actually entitled under the pension arrangements described at Article 3.3 of Addendum A of the Employment Agreement as at the Termination Date. This calculation shall be made by the Company’s actuaries as at the Termination Date.
(vi) notwithstanding any provision of IKON, Inc.’s LTIP to the contrary, the Executive shall be fully vested in all conditional awards under the LTIP and the Company shall pay to the Executive a lump sum amount, in cash, equal to the total of any incentive compensation which has been allocated or awarded to the Executive for a measuring period which commenced prior to the Termination Date under the IKON, Inc. LTIP but which, as amended, becomes the owner or beneficial owner of the Company's securitiesTermination Date, after is contingent only upon the date of this Agreement, having more than 50% continued employment of the combined voting power Executive to a subsequent date and/or upon achievement of performance goals and which otherwise has not been paid, computed as if all performance goals have been or will be achieved to the then outstanding securities maximum extent, in lieu of any payment of such incentive compensation under the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive IKON, Inc. LTIP, and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)without proration; provided, however, that a Change of Control the foregoing amount shall be paid only to the extent, and in the amount, not be deemed to have occurred if already paid under the person who becomes the owner of more that 50% terms of the combined voting power IKON, Inc. LTIP;
(vii) full vesting in all stock options, including options granted after the date of this Agreement which, to the extent not previously vested under the terms of the IKON, Inc. stock option plans, shall be exercisable beginning on the Termination Date; and
(viii) waiver of all or any claims that the Company or any Group Company may have in respect of Article 4 of the Employment Agreement.
3.3 In the event of disability or death Article 2.3 of the Employment Agreement shall continue to apply to the exclusion of the provisions of this clause.
3.4 The provision of the Package shall be without prejudice to the Executive’s right to payment of accrued Base Salary, Contractual Bonus and other Contractual Entitlements (each of Base Salary, Contractual Bonus and other Contractual Entitlements as set out in Addendum A of the Employment Agreement) to the Termination Date.
3.5 The payments (being part of the Package) due under clause 3.2 shall be payable less any sums paid to the Executive under Articles 1.2.2, 1.2.3 and 4.2.1 of the Employment Agreement and less tax and other statutory deductions which the Company is the Executive or an entity (or entities) controlled by the Executiveobliged to deduct from such payment and/or benefit.
(b) 3.6 The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed Package shall be accepted by the Executive immediately prior to the Change in full and final settlement of Control Date. If after a Change of Control, all and any claims that the Executive is requested, and, in may have arising out of his sole and absolute discretion, consents to change his principal business location, employment with the Company will or its termination.
3.7 Following the Termination Date the Company shall reimburse the Executive for all his relocation expenses, including without limitation, moving expenses, temporary living reasonable legal fees and travel other expenses for a time while arranging to move his residence incurred by him relating to the changed location, closing costs, if any, associated with the sale of his existing residence Executive’s rights and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursementsobligations under this Agreement. If The Company shall reimburse the Executive shall not consent to change his for all such reasonable legal fees and expenses no later than five business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term days after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% delivery of the Executive's Base Salary (’s written requests for payment accompanied with such evidence of fees and expenses incurred as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related theretoreasonably may require.
Appears in 1 contract
Sources: Supplemental Executive Employment Agreement (Ikon Office Solutions Inc)
Change of Control. (a) If during the Term the Bank undergoes a Change of Control, and within one year following such Change of Control Employee terminates his employment for Good Reason or Employee’s services are terminated by the Bank or its acquirer without Cause, then the Bank shall pay Employee the Accrued Obligations and, in addition, as full and final change of control severance, the Bank will provide to Employee: (i) a lump sum payment in an amount equal to one times the sum of (A) his then-current annual Base Salary and (B) the average of the three (3) most recent annual bonuses previously paid to Employee (collectively, the “Change of Control Severance”); (ii) the acceleration of the vesting of all outstanding and unvested equity awards previously granted to Employee, to the extent permitted under the applicable equity plan, if any (“Stock Acceleration”); and (iii) the COBRA Severance Benefits. Payment under this paragraph 18(a) shall be provided under the same conditions and timing specified in paragraph 17.
(b) If at any time that is less than six (6) months prior to a Change of Control the Bank terminates Employee’s employment without Cause or Employee terminates his employment for Good Reason, then such termination shall be treated as though it were a termination without Cause occurring within one year following a Change of Control and the Bank shall provide to Employee if and when the Change of Control is consummated (i) the Stock Acceleration and (ii) the Change of Control Severance minus any Standard Severance previously paid under paragraph 16. Any payments made to Employee under this paragraph 18(b) will be made at the later of (x) the Change of Control or (y) within fifteen business days after the effective date of Employee’s release of claims. Payment under this paragraph 18(b) shall be subject to the conditions and timing specified in paragraph 17. For the purposes of this Agreement, a "“Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including ” occurs when the Bank experiences a "group" as defined in Code Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material 409A “change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofcontrol event.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.”
Appears in 1 contract
Change of Control. (a) For If during the purposes term of this Agreement, there shall occur a "Change of Control" , Employee may terminate his employment hereunder for Good Reason (as hereinafter defined), whereupon Employee shall be deemed entitled to have taken place receive a payment equal to 2.99 times Employee's average annual compensation paid by Company (including bonuses, if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3any) of during the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after three years preceding the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)termination; provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced if and only to the extent necessary so that to avoid the imposition of an exercise tax on such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions payment under Section 4999 of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunderamended. For purposes of this Agreement, a ("Change of Control") for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in deemed to have occurred on the next tax year.first day on which Employee, other than by reason of termination of Employee’s employment “for cause” (as defined above), or employee’s death, disability or volitional act, ceases to serve as a member of Company’s Board of Directors. For the purposes of this Agreement, ("Good Reason") shall mean any of the following (without Employee's express prior written consent):
(fa) In The assignment to Employee by Company of duties inconsistent with Employee's then positions, duties, responsibilities, titles, or offices of any reduction in his duties or responsibilities, or any removal of Employee from or any failure to re-elect Employee to any such positions, except in connection with the event termination of Employee's employment for Cause, or disability (as described above) or as a proposed Change result of Employee's death or by termination of employment by Employee other than for Good Reason;
(b) A relocation of Company's principal executive offices to a location outside of South Florida or Company's requiring Employee to be based anywhere other than within 50 miles of the location at which Employee on the date hereof performs Employee's duties, except for required travel on Company's business to an extent substantially consistent with Employee's business travel obligations on the date hereof;
(c) A failure by Company to continue in Controleffect any benefit or compensation plan (including any pension, profit-sharing, bonus, life, medical, disability and other insurance and employee benefit plans and programs) in which Employee participates, or a failure to provide Employee with substantially similar benefits, or the taking of any actions by Company will allow which would materially and adversely affect Employee's participation in or reduce Employee's benefits under any such plans;
(d) The taking of any action by Company which would deprive Employee of any material fringe benefit enjoyed by Employee on the Executive date hereof; or
(e) The failure by Company to participate in obtain the specific assumption of this Agreement by any successor or assignee of Company or any person acquiring substantially all meetings and negotiations related theretoof Company's assets.
Appears in 1 contract
Change of Control. (ai) For The shares subject to the purposes Option, the Restricted Stock Units and the Restricted Preferred Units shall become one hundred percent (100%) vested upon the earliest to occur of this Agreement, (x) following a "Change of Control" , the Executive no longer having the same or substantially similar job title, role or responsibilities, or not being a member of the Board of Directors of the Company or its successor, but not earlier than nine months following the Change of Control, (y) the Executive’s termination without Cause following a Change of Control, or (z) a date determined by the Board; provided however, that if a definitive agreement governing a Change of Control is signed within nine months from the Effective Date and vesting as a result of such Change of Control occurs under this Section 7(i) within 12 months from the Effective Date, such vesting will be limited to $4.0 million of pre-tax value, unless otherwise approved by the Board.
(ii) Payments under Section 7(i) shall be deemed made without regard to whether the deductibility of such payments would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the U.S. federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax, if any, with respect to the Excess Parachute Payments. For reporting purposes only, the determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by the Company’s accountants (the “Accounting Firm”).
(iii) As used in this Section 7, the following capitalized terms shall have taken place if the following meanings: (i) “Change of Control” shall mean a transaction in which any person Person or group (other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇one or more Existing Series A Investors, collectively together or immediately, including a "group" individually) becomes the beneficial owner (as defined in Section 13(d)(3) of Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner ) of the Company's securities, after the date of this Agreement, having more than 50% (on a fully diluted basis) of the combined voting power of the then outstanding securities total capital stock of the Company that may be cast entitled to vote ordinarily for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)directors; provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change “Existing Series A Investors” is defined to mean any of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies all of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment holders of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (Company’s Series A Convertible Preferred Stock and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that each such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearholder’s respective Affiliates.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Sources: Employment Agreement (SAVVIS, Inc.)
Change of Control. (a) For Subject to paragraph (c) below, if any person (whether alone or together with any associated person or persons) gains control at any time of the purposes of this AgreementParent or, following a "Permitted Change of Control" , the New Holding Company:
(i) the Parent, or the New Holding Company, as the case may be, shall be deemed promptly notify the Agent upon becoming aware of that event;
(ii) the Parties agree to have taken place consult in good faith and consider any proposed amendments to the terms hereof; and
(iii) if any person other no agreement is reached between the Parties within 30 days of the notification in subparagraph (i) above, if a Lender so requires the Agent shall, by not less than ▇▇. five days’ notice to the Parent cancel the Commitment of that ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇declare the participation of that Lender in all outstanding Loans, collectively or immediatelytogether with accrued interest, including a "group" as defined and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such participations in Section 13(d)(3) of the Securities Exchange Act of 1934outstanding Loans, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (accrued interest and other than as a result of an issuance of securities specifically approved by Executive amounts will become immediately due and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executivepayable.
(b) The Company and Executive hereby agree that if Executive For the purpose of paragraph (a) above associated persons means, in relation to any person, a person who is acting in concert (as defined in the employ City Code on Takeover and Mergers) with that person or is a connected person (as defined in Section 839 of the Company on Income and Corporation Taxes Act 1988) of that person and control means the date on which a Change power (directly or indirectly) to direct the management and policies of Control occurs an entity whether through the ownership of voting capital, by contract or otherwise.
(the "Change of Control Date")c) Paragraph (a) above shall not apply to any situation in which, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any bona fide scheme of arrangement, offer, arrangement or reorganisation in respect of the Parent and/or the Group, one or more companies (the ultimate Holding Company of such reimbursements. If companies or corporations being the Executive shall not consent to change his business location, New Holding Company) are interposed between the Executive may continue to provide Parent and those persons (the services required of him hereunder in his current location, and Existing Shareholders) which are the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office Parent’s shareholders immediately prior to the relevant transaction taking place (the Permitted Change of Control) provided that:
(i) the New Holding Company (and any of its Subsidiaries which is a Holding Company of the Parent) becomes an Additional Guarantor within 30 days of the date on which the Permitted Change of Control Date.comes into effect; and
(cii) During the remaining Term Existing Shareholders control the New Holding Company and the Parent after the Permitted Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)occurs.
(d) If during the remaining Term on or after the a Permitted Change of Control Date occurs, the Parent and the Agent (i) acting on the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies instructions of the Company and the Executive voluntarily terminates employment within sixty (60Majority Lenders) shall enter into negotiations in good faith for a period not exceeding 30 days of with a view to agreeing any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled amendments to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company this Agreement which became payable after payment of the lump-sum provided for in paragraph (d), upon or are necessary as a result of the exercise by Executive of rights which are contingent on a Permitted Change of Control (Control. If any amendments are agreed they shall take effect and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder)binding on each of the Parties in accordance with their terms. If no amendments have been agreed within such 30 day period, shall the Parties agree that this Agreement will be reduced amended only to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% the Agent (acting on the instructions of the Executive's Base Salary Majority Lenders) reasonably specifies is necessary:
(as computed in accordance with provisions i) to enable the New Holding Company and each Subsidiary of the Internal Revenue Code New Holding Company which is also a Holding Company of 1986, the Parent to become a party to this Agreement as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.Additional Guarantor; and
(fii) In to reflect any requirements of the event law of a the jurisdiction in which each such person is incorporated (the Local Law), to ensure that each such proposed Change in Control, Additional Guarantor is able to comply with its obligations under this Agreement to the Company will allow the Executive to participate in all meetings and negotiations related theretofullest extent permitted by each relevant Local Law.
Appears in 1 contract
Change of Control. (a) For In the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that event a Change of Control shall not be deemed to have occurred if occurs during the person who becomes Service Period, the owner number of more that 50% Shares issuable under this Award and the date of issuance of the combined voting power Shares shall be determined as follows notwithstanding any provisions of this Agreement or the Plan to the contrary:
(a) In the event the Change of Control occurs prior to completion of the Performance Period and Participant remains in continued employment or service with the Company is the Executive or an entity (or entitiesAffiliate through the effective date of that Change of Control, then this Award shall be converted into a right to receive the number of Target Performance Shares without any measurement of Performance Goal attainment to date, subject to the provisions of Paragraphs 4(c) controlled by the Executiveand 4(d) below.
(b) The Company and Executive hereby agree that if Executive is in If the employ of the Company on the date on which a Change of Control occurs (on or after completion of the "Change Performance Period but prior to completion of Control Date"), the Service Period and Participant remains in continued employment or service with the Company will continue to employ or an Affiliate through the Executive and the Executive will remain in the employ effective date of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a that Change of Control, this Award shall entitle Participant to receive the Executive is requestednumber of Actual Performance Shares based on the level of attainment of the Performance Goals, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence subject to the changed location, closing costs, if any, associated with the sale provisions of his existing residence Paragraphs 4(c) and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date4(d) below.
(c) During the remaining Term after If this Award is assumed, continued or substituted in connection with the Change of Control Datein accordance with the Plan, then provided Participant remains in continued employment or service with the Company or an Affiliate through the completion of the Service Period, the Company will Shares issuable under this Award (ias determined in accordance with the applicable provisions of Paragraphs 4(a) continue and 4(b)) or other consideration payable in connection with such assumption, continuation or substitution, shall be issued on January 1, 2015 or as soon as practicable thereafter but in no event later than March 15, 2015. If Participant’s continued employment or service terminates prior to honor completion of the terms of this AgreementService Period, including Base Salary then except as otherwise provided in Paragraph 4(f) and Paragraph 4(g), the Award shall be immediately cancelled upon such termination and Participant shall thereupon cease to have any right or entitlement to receive any Shares or other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on consideration under the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits)Award.
(d) If during the remaining Term on this Award is not assumed, continued or after substituted in connection with the Change of Control Date (i) in accordance with the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrencesPlan, then the Executive Shares issuable under this Award (as determined pursuant to Paragraphs 4(a) or 4(b)) or other consideration payable with respect to such Shares in consummation of the Change of Control shall be entitled to receiveissued on the effective date of the Change of Control or as soon as administratively practicable thereafter, subject to the provisions of subparagraphs but in no event more than fifteen (e15) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofbusiness days after such effective date.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on Following a Change of Control (and would be considered a "parachute payment" Control, Participant shall not have any right to receive any Shares under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% this Award in excess of the Executive's Base Salary (as computed in accordance with provisions number of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearShares determined under this Paragraph 4.
(f) In the event of Participant’s termination of continued employment or service with the Company or an Affiliate that occurs during the Service Period by reason of death or Disability, Participant shall be entitled to receive a proposed number of Shares determined by multiplying (A) the number of Shares (if any) to which Participant would be entitled in accordance with the applicable provisions of Paragraphs 4(a) and 4(b) had Participant’s employment or service not terminated by (B) a fraction, the numerator of which is the number of months of service in the Service Period prior to the termination (rounded up to the closest whole month) and the denominator of which is thirty-six (36). To the extent not issued at the time of the Change in of Control, such Shares (or other consideration issuable under this Award) shall be issued immediately upon such termination or as soon as practicable thereafter, but not later than the Company will allow fifteenth (15th) day of the Executive third (3rd) calendar month following the year of such termination.
(g) Notwithstanding anything to participate the contrary, in all meetings the event of Participant’s Involuntary Termination that occurs during the Service Period and negotiations related theretowithin twenty-four (24) months following a Change of Control in connection with which this Award is assumed, continued or substituted, Participant shall immediately vest in the Shares (as determined in accordance with the applicable provisions of Paragraphs 4(a) and 4(b) above) or other consideration payable in connection with such assumption, continuation or substitution issuable under this Award and such Shares or other consideration shall be issued immediately upon such Involuntary Termination or as soon as practicable thereafter, but in no event more than fifteen (15) business days after such Involuntary Termination.
(h) Each issuance of Shares shall be subject to the Company’s collection of any Applicable Taxes.
(i) For purposes of this Agreement, the following definitions shall apply:
Appears in 1 contract
Change of Control. (a) For Notwithstanding Sections 2.5 and 2.6, upon the purposes occurrence of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control before the Participant has experienced Termination of Employment with the Company other than a termination described in Section 2.7, the Performance Units shall not be deemed to have occurred if cancelled and a number of Restricted Shares shall be issued that equal the person who becomes the owner of more that 50% portion of the combined voting power number of cancelled Performance Units that would become Earned Units under Section 2.5 based on: (i) actual Revenue and EBITDA performance relative to the Targets for each completed Fiscal Year; (ii) the assumption that performance would have been at Target Performance for Revenue and EBITDA for Fiscal Years that have not been completed as of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ date of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on Control; (iii) Relative TSR through the expiration date of the Term, to exercise such authority Change of Control; and perform such executive duties as are commensurate with (iv) if the authority being exercised and duties being performed by the Executive immediately Participant terminated employment in a manner described in Section 2.7 prior to the Change of Control Datethe number of Restricted Shares shall be further adjusted for the pro-rata adjustment required by Section 2.7. Such Restricted Shares shall be subject to the terms set forth in this Section 2.8. Unless the Participant terminated employment before the Change of Control under a circumstance described in Section 2.7, such Restricted Shares shall be subject to a “substantial risk of forfeiture” within the meaning of Code Section 83 until the last day of the Performance Period that applied to the cancelled Performance Shares. If a Participant Terminated Employment before a Change of Control under a circumstance described in Section 2.7, the Participant shall, upon the occurrence of the Change of Control, become 100% vested in all outstanding converted Restricted Shares awarded under this Grant Agreement. During the period the Restricted Shares are subject to substantial risk of forfeiture, the Restricted Shares shall be held by the Company, or its transfer agent or other designee and shall be subject to restrictions on transfer. Except as otherwise set forth in this Section 2.8, in order to become vested in the Restricted Shares, the Participant must remain in continuous employment of the Company during the period any Restricted Shares are subject to substantial risk of forfeiture. Absent an agreement to the contrary, if Participant experiences a Termination of Employment with the Company for any reason, other than Qualifying Termination, Good Reason Termination, Retirement, Early Retirement, Death or Disability while the Restricted Shares are subject to a substantial risk of forfeiture, all Restricted Shares then held by the Company or its transfer agent or other designee, if any, shall be forfeited by the Participant and Participant authorizes the Company and its stock transfer agent to cause delivery, transfer and conveyance of the Restricted Shares to the Company. If a Participant has a Termination of Employment following a Change of Control due to a Qualifying Termination, a Good Reason Termination, Retirement, Early Retirement, Death, or Disability, the Participant shall, upon the occurrence of such termination, become 100% vested in all outstanding converted Restricted Shares awarded under this Grant Agreement. The Restricted Shares shall cease to be subject to a substantial risk of forfeiture and an equal number of Shares shall be transferred directly into a brokerage account established for the Participant at a financial institution the Committee shall select at its sole discretion (the “Financial Institution”) or delivered in certificate form free of restrictions, such method to be selected by the Committee in its sole discretion upon: (i) if the Participant Terminated Employment before a Change of Control under a circumstance described in Section 2.7 other than death, the later of: (x) the date of the Change of Control, or (y) six months following the date of Termination of Employment due to a Qualifying Termination, Retirement, Early Retirement or Disability; (ii) if the Participant Terminated Employment before a Change of Control under a circumstance described in Section 2.7 due to death, the date of the Change of Control; (iii) if the Participant Terminated Employment after the date of the Change of Control due to a Qualifying Termination, Good Reason Termination, Retirement, Early Retirement or Disability, the date that is six months following the date of Termination of Employment; (iv) if the Participant Terminated Employment after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office Control but prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Datevesting date due to death, the Company will date of death; or (iv) continue if the Participant did not Terminate Employment prior to honor the terms of this Agreementvesting date, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject vesting date. The Participant agrees to such reductions as may be required to maintain such plans in compliance complete any documentation with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series financial institution that is necessary to effect the transfer of occurrences, then the Executive shall be entitled to receive, subject Shares to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to financial institution before the Executive under Section 3 hereofdelivery will occur.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Sources: Performance Share Units Grant Agreement (H&r Block Inc)
Change of Control. (a) For The Executive's Agreement. In the purposes event of this Agreement, a "Change of Control" shall be deemed , upon receipt by the Executive of the Change of Control Payment, subject only to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇death, collectively or immediatelydisability, including a "group" termination of employment by the Executive for Good Reason (as defined in Section 13(d)(3) paragraph 4.5 of the Securities Exchange Act 1994 Agreement) or termination of 1934employ- ment by the Corporation, as amended, becomes the owner or beneficial owner of Executive agrees to continue his employment pursuant to para- graph 1.1 hereof under the Company's securities, after same terms and conditions and in the date of this Agreement, having more than 50% of capacity set forth in the combined voting power of 1994 Agreement and herein during the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that one- year period immediately following a Change of Control (the 'Stay Period'). During the Stay Period, the Executive shall not be deemed entitled to have occurred if all compensation and benefits as otherwise would be provided to the person who becomes Executive during the owner Employment Period. The parties recognize that it would be difficult to determine the amount of more damages that 50% will result to a prospective purchaser of the combined voting power of Corporation in the Company is event the Executive or an entity (or entities) controlled by should fail to perform his agreement to provide services to the Executive.
(b) The Company and Executive hereby agree that if Executive is Corporation during the Stay Period as provided in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"this paragraph 4.4(a). Accordingly, the Company will continue to employ the Executive Corporation and the Executive will agree that as liquidated damages for the Executive's failure to perform such ser- vices and to remain in the employ of the Company for Corporation as provided herein, the period commencing on Executive agrees to reimburse the Corporation an amount equal to one-third of the Change of Control Date Payment (as defined in paragraph 4.4(b) below) less the amount of income and ending on employment taxes attributable to such amount which have been or will be required to be paid by the expiration Executive, but excluding from the amount to be repaid the Gross-up Payment (as defined in paragraph 8 below), herein attributable to such amount, and to forfeit all but $100.00 of the TermCovenant Payment (as defined in paragraph 4.4(c) be- low), to exercise such authority and perform such executive duties as are commensurate with herein the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and'Liquidation Amount'; provid- ed, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at event that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue the Executive de- ducts any of the Liquidation Amount which has been paid to honor the terms Company pursuant to this paragraph 4.4(a) as a deductible expense under Section 165(c) of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, the Code and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change Inter- nal Revenue Service allows a final refund of Control Date any income or employment taxes (but including interest) no longer subject to such reductions as may be required audit (the 'Refund') attributable to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after Liquidation Amount, the Change of Control Date (i) Executive shall immediately pay the Executive's employment is terminated by Refund to the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company Company. The Corporation and the Executive voluntarily terminates employment within sixty (60) days agree that the payment of any such occurrence, or the last in a series of occurrences, then Liquidation Amount by the Executive to the Corporation shall be entitled to receive, subject to the sole and exclusive remedy of the Corporation for the breach by Executive of the provisions of subparagraphs (e) this paragraph 4.4(a), and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section paragraph 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would 1994 Agreement shall not be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax yearapplicable.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Change of Control. (a) For The provisions of Section 6.1 and 6.2 hereof to the purposes contrary notwithstanding, if (i) Executive is terminated by the Company without Cause or Executive resigns for CoC Good Reason (defined below) in either case during the period commencing on a Change of this AgreementControl (defined below) and ending on the second anniversary of the Change of Control (such two-year period being the “Protection Period” hereunder), or (ii) Executive reasonably demonstrates that the Company’s termination of Executive’s employment (or event which, had it occurred following a "Change of Control" , would have constituted CoC Good Reason) prior to a Change of Control was at the request of a third party who was taking steps reasonably calculated to effect a Change of Control (or otherwise in contemplation of a Change of Control) and a Change of Control actually occurs, (each a “Qualifying Termination”), then Executive shall be deemed entitled to receive: (A) an amount in cash equal to the then-prevailing target amount of Executive’s Annual Bonus (“Target Bonus”) during the year of termination multiplied by a fraction, the numerator of which is the number of completed days (including the date of termination) during the year of termination and the denominator of which is 365, (B) an amount in cash equal to the sum of Executive’s annual Base Salary and annual Target Bonus, and (C) continuation of medical benefits until the first anniversary of the date of such termination upon the same terms as exist for Executive immediately prior to the termination date. Following any termination described in this Section 6.4, the Company shall continue to have taken place if all other rights available hereunder (including, without limitation, all rights under the Restrictive Covenants and any person other than ▇▇restrictive covenants set forth in any plan, award and agreement applicable to Executive, at law or in equity). ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined Subject to the Executive’s execution of the Release described in Section 13(d)(3) 10.1 of the Securities Exchange Act of 1934Agreement, as amended, becomes the owner or beneficial owner of the Company's securities, amounts described in (A) and (B) shall be paid in a lump sum within ten (10) days after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that a Change of Control termination. Such amounts or benefits shall not be deemed subject to have occurred if the person who becomes the owner of more mitigation or offset, except that 50% of the combined voting power of the Company is the medical benefits may be offset by comparable benefits obtained by Executive or an entity (or entities) controlled by the Executivein connection with subsequent employment.
(b) The Anything set forth in any equity plan, equity award or any other provision of this Agreement between the Company and Executive hereby agree to the contrary notwithstanding, all of Executive’s outstanding equity grants that if Executive is in were awarded at or prior to the employ time of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on shall fully vest upon the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase occurrence of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control DateQualifying Termination.
(c) During The compensation and benefits described in Section 6.4(a) and 6.4(b) shall be in lieu of compensation and benefits provided otherwise for a termination under Section 6.2 of this Agreement and any other plan or agreement of the remaining Term Company, whether adopted before or after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 date hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee which provides severance payments or benefits).
(d) If during the remaining Term on it is determined that any amount, right or after the Change of Control Date benefit paid or payable (ior otherwise provided or to be provided) the Executive's employment is terminated to Executive by the Company or any of its affiliates under this Agreement or any other than for cause plan, program or arrangement under which Executive participates or is a party (as defined in Section 5 hereofcollectively, the “Payments”), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "constitute an “excess parachute payment" under Internal Revenue Code ” within the meaning of Section 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether from time to time (the “Code”), subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), then the amount of the Payments payable to the Executive has received an excess parachute payment. Any such excess amount under this Agreement shall be deferred reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. All determinations required to be made under this Section 6.4(d) and paid the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the next tax yearevent a Reduction is required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of Section 6.4(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction is necessary. All fees and expenses of the Auditor shall be paid by the Company. All determinations made by the Auditor shall be binding upon the Company and the Executive.
(fe) In For purposes of this Section 6.4 (and distinguished from a “Qualified Change of Control” provided under certain other circumstances under the event of a proposed Change in ControlAgreement), the Company will allow term “Change of Control” shall be deemed to have occurred upon the Executive first to participate occur of any event set forth in all meetings and negotiations related thereto.any one of the following paragraphs of this Section 6.4(e):
Appears in 1 contract
Sources: Senior Management Agreement (Huron Consulting Group Inc.)
Change of Control. In order to protect the Executive against the ----------------- possible consequences and uncertainties of a Change of Control of the Corporation (as hereinafter defined) and thereby induce the Executive to enter into the employ of the Corporation, the Corporation agrees that:
(a) If, during the term of this Agreement, the Executive's employment is terminated by the Corporation at any time subsequent to a Change of Control other than for the causes set forth in Paragraph 8(a), then in such event, the Corporation shall pay the Executive all amounts due to Executive pursuant to this Agreement, for the entire term of this Agreement. The base salary of the Executive in effect at the time of termination pursuant to this Paragraph 9(a) shall remain in effect for the remaining term of this Agreement. All benefits provided to Executive pursuant to this Agreement shall continue to be provided to Executive for the entire term of this Agreement.
(b) For the purposes of this Paragraph 9, in the event, following a Change of Control, the Executive shall resign from his employment with the Corporation within thirty (30) calendar days after he has obtained actual knowledge of any significant change or proposed change in his title, nature of duties, employee benefits or working conditions, in each instance without his prior consent, such resignation shall be deemed to be a termination of employment by the Corporation for purposes of Paragraph 9(a) of this Agreement.
(c) As used in this Paragraph 9, a "Change of Control" shall be deemed to have taken place occurred if (i) any person other than ▇▇. ▇▇▇▇▇▇ "person" or "group of persons" (as such terms are used in Sections 13(d) and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(314(d) of the Securities Exchange Act of 1934, as amendedamended (the "1934 Act"), becomes the owner "beneficial owner" (as defined in Rule 13d-3 promulgated under the 1934 Act), directly or beneficial owner indirectly, of securities of the Company's securities, after the date of this Agreement, having Corporation representing more than 50% thirty-five percent (35%) of the combined voting power of the Corporation's then outstanding securities of having the Company that may be cast for right to vote on the election of directors or (ii) if directors constituting a majority of the Company Board of Directors are elected to the Board of Directors without the recommendation or approval of the incumbent Board of Directors.
(other than as a result of an issuance of securities specifically approved d) Anything in this Paragraph 9 to the contrary notwithstanding, in the event that the Corporation's auditors determine that the payment by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement Corporation to or for the benefit of the Executive); provided, however, that a Change of Control shall not be deemed whether paid or payable pursuant to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive immediately prior to the Change of Control Date. If after a Change of Control, the Executive is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may would be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated non-deductible by the Company other than Corporation for cause (as defined in federal income tax purposes because of Section 5 hereof), or (ii280(G) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) (the "Code"), then the amount payable to or for determining whether the benefit of the Executive has received an excess parachute payment. Any such excess amount pursuant to this Agreement shall be deferred and paid reduced to such amount which maximizes the amount payable without causing the payment to be non-deductible by the Corporation because of Section 280(G) of the Code. The manner in which such payments or benefits shall be reduced shall be determined by the next tax yearExecutive, utilizing the valuation for the various benefits reasonably determined by the Corporation's independent public accountants.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Change of Control. If a Change in Control occurs prior to the date that some or all of the Restricted Stock Units become vested, then the provisions of this Paragraph 4(b) shall apply as follows:
(1) The Restricted Stock Units shall become vested as set forth in Paragraph 3 above.
(2) Notwithstanding Paragraph 4(b)(1), the Restricted Stock Units shall become fully vested on the Grantee’s Date of Termination if Grantee is Involuntarily Terminated by the Company. As used in this paragraph, “Involuntarily Terminated” means Grantee’s employment with the Company (or, if applicable the Company’s (or the Company’s successor’s) affiliates) ceases during the twelve month period beginning on the effective date of the Change in Control due to either (i) employment termination by the Company for reasons other than (a) For Grantee’s gross negligence or willful misconduct in the purposes performance of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. duties with the Company or (b) ▇▇▇▇▇▇▇’s final conviction of a felony or a misdemeanor involving moral turpitude, collectively or immediately, including (ii) resignation by Grantee after (a) a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of reduction by the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); providedGrantee’s authority, however, that a Change of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% of the combined voting power of the Company is the Executive duties or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive responsibilities immediately prior to the Change in Control (excluding for this purpose (A) an insubstantial reduction of Control Date. If after a Change such authorities, duties or responsibilities or an insubstantial reduction of ControlGrantee’s offices, the Executive titles and reporting requirements, or (B) an isolated, insubstantial and inadvertent action not taken in bad faith and which is requested, and, in his sole and absolute discretion, consents to change his principal business location, remedied by the Company will reimburse the Executive for his relocation expensespromptly after receipt of notice thereof given by Grantee), including without limitation, moving expenses, temporary living and travel expenses for (b) a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale material reduction of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state Grantee’s base salary or federal taxes payable by Executive total compensation as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office effect immediately prior to the Change of in Control Date.
(c) During the remaining Term after the Change of Control Datetotal compensation means for this purpose: base salary, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth participation in Section 3 hereofan annual bonus plan, and participation in a long-term incentive plan (ii) continue employee benefits as set forth and not reductions in Section 4 hereof any annual bonus or long-term incentives actually paid, which shall remain at levels in effect on the Change sole discretion of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereofCompany), or (iic) there shall have occurred ▇▇▇▇▇▇▇’s transfer, without Grantee’s express written consent, to a material reduction location which is outside the general metropolitan area in Executive's compensation which ▇▇▇▇▇▇▇’s principal place of business immediately prior to the Change in Control may be located or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in requiring Grantee to travel on Company business to a series of occurrences, then the Executive shall be entitled to receive, subject substantially greater extent than required immediately prior to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Sources: Restricted Stock Units Agreement (Ion Geophysical Corp)
Change of Control. If a Party (athe “Acquired Party”) For the purposes of this Agreement, a "Change of Control" shall be deemed to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than as a result of an issuance of securities specifically approved by Executive and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive); provided, however, that undergoes a Change of Control shall not be deemed to have occurred if involving a Third Party (the person who becomes the owner of more that 50% “Acquirer”), then each of the combined voting power following subsections shall apply:
(a) The Acquired Party shall give notice to the other Party(ies) (“Non-Acquired Party”) describing in reasonable detail the transaction or series of related transactions no later than 60 days following the Company is the Executive or an entity (or entities) controlled by the Executiveclosing of such transaction.
(b) The Company licenses and Executive hereby agree that if Executive is in covenants granted to the employ of the Company on the date on which a Change of Control occurs (the "Change of Control Date")Acquired Party and its Subsidiaries will be limited to Products marketed, the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Termsold, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed licensed or publicly announced by the Executive immediately Acquired Party or any of its Subsidiaries prior to the Change of Control Datein accordance with the terms and conditions of Sections 3 and 4 (“Existing Licensed Products”), updates, upgrades, and bug fixes thereto, and new versions thereof that are substantially similar in function and features. If after a Change The licenses and covenants will not otherwise extend to the Acquirer or any of Control, the Executive is requested, and, in his sole its Affiliates. By way of example and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without not limitation, moving expensesif Apple or Microsoft, temporary living and travel expenses for a time while arranging directly or indirectly, acquires control of TiVo, except as expressly set forth in the foregoing sentence with respect to move his residence Existing Licensed Products, no rights under this Agreement (whether by license, covenant or otherwise) would extend to the changed location, closing costs, if any, associated with the sale Apple or Microsoft or any of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current location, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Datetheir respective Products.
(c) During The licenses and covenants granted to the remaining Term after Non-Acquired Party and its Subsidiaries will remain in effect with respect to the Change Patents of Control Date, the Company will (i) continue to honor Acquired Party and its Subsidiaries in accordance with the terms and conditions of this AgreementSections 3 and 4. However, including Base Salary no rights, licenses or covenants will be granted to the Non-Acquired Party or its Subsidiaries with respect to any Patents of the Acquirer or its Subsidiaries (other than Patents of the Acquired Party and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefitsits Subsidiaries).
(d) If during Except as otherwise expressly set forth in this Section 10.1, the remaining Term on or licenses and covenants granted to each Party and its Subsidiaries (and permitted successors and permitted assigns) will remain in effect after the such Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereof.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions the terms and conditions of this Agreement. For purposes of this Section 10.1: (1) if TiVo is the Internal Revenue Code of 1986Acquired Party, as amended Google and any regulations promulgated thereunderCisco are each the Non-Acquired Party, and (2) for determining whether if either Google or Cisco is the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in Acquired Party, TiVo alone is the next tax yearNon-Acquired Party.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Change of Control. In the event of a Change in Control:
(a) For If the purposes Corporation is the surviving entity and any adjustments necessary to preserve the value of this Agreementthe Optionee’s Option have been made, or the Corporation’s successor at the time of the Change in Control irrevocably assumes the Corporation’s obligations under the Plan or replaces the Optionee’s outstanding Option with stock options of equal or greater value and having terms and conditions no less favorable to the Optionee than those applicable to the Optionee’s Options immediately prior to the Change in Control, then the Option or the replacement option shall become immediately exercisable in full only if within two years after the Change in Control:
i. the Optionee’s employment is terminated without Cause;
ii. the Optionee terminates employment with Good Reason;
iii. the Optionee’s employment terminates under circumstances that entitle the Optionee to benefit under Optionee’s change of control agreement or any income continuation benefits under any plan of the Corporation, a "Change of Control" shall be deemed Subsidiary, or an entity that is a successor to have taken place if any person other than ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇, collectively the Corporation or immediately, including a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, becomes the owner or beneficial owner of the Company's securities, after the date of this Agreement, having more than 50% of the combined voting power of the then outstanding securities of the Company that may be cast for the election of directors of the Company (other than Subsidiary as a result of an issuance the Change in Control, or that would have entitled the Optionee to such benefits if the Optionee participated in such plan (for this purpose only, any such plan terminated in connection with the Change in Control shall be taken into account); or
iv. the Optionee’s employment terminates under circumstances that entitle the Optionee to income continuation benefits under any change of securities specifically approved control agreement or employment agreement between the Optionee and the Corporation, a Subsidiary, or any successor thereof.
(b) If Section 7(a) does not apply, then without any action by Executive the Compensation Committee or the Board, this Option as to the Option Shares granted under the Plan that have not been previously exercised or otherwise lapsed and specifically excluded from the provisions of this Section 8 by subsequent written agreement of the Executive)terminated shall become immediately exercisable in full; provided, however, that the Compensation Committee, in its sole discretion, and without the consent of any Optionee affected thereby, may determine that a cash payment shall be made promptly following the Change in Control in lieu of Control shall not be deemed to have occurred if the person who becomes the owner of more that 50% all or any portion of the combined voting power outstanding Option Shares granted under this Agreement. The amount payable with respect to each share of Stock subject to an affected Option shall equal the excess of the Company is the Executive or an entity (or entities) controlled by the Executive.
(b) The Company and Executive hereby agree that if Executive is in the employ Fair Market Value of the Company on the date on which a Change share of Control occurs (the "Change of Control Date"), the Company will continue to employ the Executive and the Executive will remain in the employ of the Company for the period commencing on the Change of Control Date and ending on the expiration of the Term, to exercise such authority and perform such executive duties as are commensurate with the authority being exercised and duties being performed by the Executive Stock immediately prior to such Change in Control over the Change exercise price of Control Datesuch Option. If after After such a Change of Controldetermination by the Compensation Committee, the Executive each Option, with respect to which a cash payment is requested, and, in his sole and absolute discretion, consents to change his principal business location, the Company will reimburse the Executive for his relocation expenses, including without limitation, moving expenses, temporary living and travel expenses for a time while arranging to move his residence to the changed location, closing costs, if any, associated with the sale of his existing residence and the purchase of a replacement residence at the changed location, plus an additional amount representing a gross-up of any state or federal taxes payable by Executive as a result of any such reimbursements. If the Executive be made shall not consent to change his business location, the Executive may continue to provide the services required of him hereunder in his current locationterminate, and the Company shall continue to maintain an office for the Executive at that location commensurate with the Company's office prior to the Change of Control Date.
(c) During the remaining Term after the Change of Control Date, the Company will (i) continue to honor the terms of this Agreement, including Base Salary and other compensation set forth in Section 3 hereof, and (ii) continue employee benefits as set forth in Section 4 hereof at levels in effect on the Change of Control Date (but subject to such reductions as may be required to maintain such plans in compliance with applicable federal law regulating employee benefits).
(d) If during the remaining Term on or after the Change of Control Date (i) the Executive's employment is terminated by the Company other than for cause (as defined in Section 5 hereof), or (ii) there Optionee shall have occurred a material reduction in Executive's compensation or employment related benefits, or a material change in Executive's status, working conditions or management responsibilities, or a material change in no further rights thereunder except the business objectives or policies of the Company and the Executive voluntarily terminates employment within sixty (60) days of any right to receive such occurrence, or the last in a series of occurrences, then the Executive shall be entitled to receive, subject to the provisions of subparagraphs (e) and (f) below, a lump-sum payment equal to 299% of Executive's current Base Salary in addition to any other compensation that may be due and owing to the Executive under Section 3 hereofcash payment.
(e) The amounts payable to the Executive under any other compensation arrangement maintained by the Company which became payable after payment of the lump-sum provided for in paragraph (d), upon or as a result of the exercise by Executive of rights which are contingent on a Change of Control (and would be considered a "parachute payment" under Internal Revenue Code 280G and regulations thereunder), shall be reduced to the extent necessary so that such amounts, when added to such lump-sum, do not exceed 299% of the Executive's Base Salary (as computed in accordance with provisions of the Internal Revenue Code of 1986, as amended and any regulations promulgated thereunder) for determining whether the Executive has received an excess parachute payment. Any such excess amount shall be deferred and paid in the next tax year.
(f) In the event of a proposed Change in Control, the Company will allow the Executive to participate in all meetings and negotiations related thereto.
Appears in 1 contract
Sources: Non Qualified Stock Option Agreement (Bryn Mawr Bank Corp)