Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events: (i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or (ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed: (A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company; (B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company; (C) intentional wrongful damage to property of the Company; (D) intentional wrongful disclosure of secret processes or confidential information of the Company; (E) intentional wrongful engagement in any Competitive Activity; or (F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination. (b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events: (i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or (ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events: (A) A reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be; (B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof; (C) The Company requires the Executive to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent; (D) Any material breach of this Agreement by the Company or any successor thereto; or (E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control. (c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 2 contracts
Sources: Change in Control Agreement (Southwest Bancorp of Texas Inc), Change in Control Agreement (Southwest Bancorp of Texas Inc)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in any Competitive Activity; or
(F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(C) The Company requires the Executive to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of in Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of in Control without, in either case, his prior consent;; or
(D) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 2 contracts
Sources: Change in Control Agreement (Southwest Bancorp of Texas Inc), Change in Control Agreement (Southwest Bancorp of Texas Inc)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive Employee is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive Employee shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in any Competitive Activity; or
(F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive Employee shall be deemed "intentional" intentional if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" intentional only if done, or omitted to be done, by the Executive Employee not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive Employee shall not be deemed to have been terminated for "Cause" Cause hereunder unless and until there shall have been delivered to the Executive Employee a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive Employee and an opportunity for the ExecutiveEmployee, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive Employee had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive Employee or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive Employee during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive Employee for any reason other than for Cause or as a result of the death of the Executive Employee or by reason of the ExecutiveEmployee's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive Employee of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the ExecutiveEmployee's Base Pay and Incentive Pay received from the Company, or the termination of the ExecutiveEmployee's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the ExecutiveEmployee, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive Employee of such change, reduction or termination, as the case may be;
(B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(C) The Company requires the Executive Employee to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(D) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive Employee pursuant to Section 4(b) hereof shall not affect any rights which the Executive Employee may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive Employee is terminated under circumstances in which the Executive Employee is not entitled to any payments under Sections 3 or 5 hereof, the Executive Employee shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 2 contracts
Sources: Change in Control Agreement (Southwest Bancorp of Texas Inc), Change in Control Agreement (Southwest Bancorp of Texas Inc)
Termination Following a Change in Control. The Company shall pay the Severance Benefit to Executive if, during the Severance Period, (i) Executive's employment with the Company is terminated by the Company other than for Cause; (ii) Executive’s employment is terminated due to permanent disability or death; (iii) Executive terminates his employment with the Company (which he shall be entitled to do) due to the:
(a) In failure to elect or reelect or otherwise maintain Executive in the event office or the position, or a substantially equivalent office or position, of or with the occurrence of Company which Executive held immediately prior to a Change in Control, this Agreement may be terminated by or the removal of Executive as a Trust Manager of the Company during the Period of Employment only upon the occurrence of one (or more of the following events:
(iany successor thereto) If the if Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees had been a Trust Manager of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in any Competitive Activity; or
(F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) material diminution in the event nature or scope of the occurrence of a Change in Controlauthorities, this Agreement may be terminated by powers, functions, responsibilities or duties attached to the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment position with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled Executive held immediately prior to the Change in Control or a material reduction in the Executive's base pay;
(c) the determination by Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Company by clear and convincing evidence) that a material negative change in circumstances has occurred following a Change in Control, including without limitation, a material negative change in the scope or value thereof without the prior written consent of the business or other activities for which Executive was responsible immediately prior to the Change in Control, which has rendered Executive substantially unable to carry out, has materially hindered Executive's performance of, or has caused Executive to suffer a substantial material reduction in, any of which is not remedied within 10 calendar days after receipt the authorities, powers, functions, responsibilities, or duties attached to the position held by Executive immediately prior to the Company of written notice from the Executive of such change, reduction or termination, as the case may beChange in Control;
(Bd) The the liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion substantially all of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization reorganization, transfer or otherwise) to which all or a significant portion substantially all of its the Company's business and/or assets have been transferred (directly or by operation of law) shall have assumed assumes all duties and obligations of the Company under this Agreement, so that it is reasonably likely that there will be no material breach of the Agreement pursuant to Section 11 hereofby the Company or its successor-in-interest;
(Ce) The the Company relocates its principal executive offices, or requires the Executive to have his Executive's principal location of work changed changed, to any location which is in excess of 50 25 miles from the location thereof immediately prior to the Change of Control in Control, or requires Executive to travel away from his Executive's office in the course of discharging his Executive's responsibilities or duties hereunder significantly at least 20% more (in terms of either consecutive days or aggregate days in any calendar year or in any calendar quarter when annualized for purposes of comparison to any prior year) than was required of him Executive in any of the three full years immediately prior to the Change of in Control without, in either case, his Executive's prior written consent;; and/or
(Df) Any without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto; or
(E) . The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability must give notice to the Company hereunder with respect of the existence of any of the foregoing conditions within ninety (90) days of the initial existence of the condition, and the Company shall have a period of not less than thirty (30) days to his prior or any future employment by remedy the condition. Any Severance Benefit due under this Section 2 shall be due and payable within five business days after the occurrence of the event giving rise to the Company's obligation to pay the Severance Benefit.
Appears in 2 contracts
Sources: Severance and Change in Control Agreement (Weingarten Realty Investors /Tx/), Severance and Change in Control Agreement (Weingarten Realty Investors /Tx/)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement the Executive's employment may be terminated by the Company during the Period of Employment and the Executive shall not be entitled to the benefits provided by Section 5 hereof only upon the occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(iiiii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;; or
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in ; and any Competitive Activity; or
(F) an such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(C) The Company requires the Executive to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;
(D) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.of
Appears in 2 contracts
Sources: Executive Change in Control Agreement (Lamson & Sessions Co), Executive Change in Control Agreement (Lamson & Sessions Co)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in any Competitive Activity; or
(F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(C) The Company requires the Executive to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(D) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Southwest Bancorp of Texas Inc)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his the Executive's job (with or without reasonable accommodation) because he the Executive has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the a long-term disability plan in effect maintained by or on behalf of the Company for senior executives generally or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", ," which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his the Executive's duties or in the course of his the Executive's employment with the Company;
(CB) intentional wrongful damage to property of the Company;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his the Executive's action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his the Executive's counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had has committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his the Executive's beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his the Executive's employment with the Company within three years after during the Change in Control Period of Employment upon the occurrence of any of the following events:
(A) Failure to elect or reelect the Executive to the office(s) of the Company which the Executive held immediately prior to a Change in Control, or failure to elect or reelect the Executive as a director of the Company or the removal of the Executive as a director of the Company (or any successor thereto), if the Executive shall have been a director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position(s) with the Company which the Executive held immediately prior to the Change in Control, a reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he the Executive was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive made in good faith that, following a Change in Control, as a result of a change in circumstances significantly affecting the Executive's position(s) held with the Company, including without limitation, a change in the scope of the business or other activities for which the Executive was responsible immediately prior to a Change in Control, that the Executive has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in any of the authorities, powers, functions, responsibilities or duties attached to the position(s) held with the Company by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CE) The Company requires shall require that the principal place of work of the Executive to have his principal location of work be changed to any location which is in excess of 50 fifty (50) miles from the location thereof immediately prior to the Change of in Control or to travel away from his the Executive's office in the course of discharging his the Executive's responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him the Executive prior to the Change of in Control without, in either case, his the Executive's prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his the Executive's prior or any future employment by the Company.
Appears in 1 contract
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his the Executive’s job (with or without reasonable accommodation) because he the Executive has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the a long-–term disability plan in effect maintained by or on behalf of the Company for senior executives generally or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "“Cause", ,” which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section Subsection 4(b) hereof, the Executive shall have committed:
(A) Gross negligence an intentional act of material fraud, embezzlement or willful misconduct theft in connection with his the Executive’s duties or in the course of his the Executive’s employment with the Company;
(B) an act intentional, wrongful damage to material property of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional intentional, wrongful disclosure of material secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "“intentional" ” if it was due primarily to an error in judgment or negligence, but shall be deemed "“intentional" ” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his the Executive’s action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "“Cause" ” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-–quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his the Executive’s counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had has committed an act set forth above in this Section Subsection 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his the Executive’s beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following eventsevents as determined by the Executive in the sole discretion of the Executive:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's ’s disability and the actual receipt of disability benefits in accordance with Section Subsection 4(a)(i) hereof; or
(ii) Termination by the Executive of his the Executive’s employment with the Company within three years after (or any successor to or affiliate thereof) during the Change in Control Period of Employment upon the occurrence of any of the following events:
(A) A Failure to elect or reelect the Executive to the office(s) which the Executive held immediately prior to a Change in Control, or failure to elect or reelect the Executive as a director of the Company (or any successor to parent entity thereof) or the removal of the Executive as a director of the Company (or any successor thereto), if the Executive shall have been a director of the Company immediately prior to the Change in Control;
(B) An adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position(s) which the Executive held immediately prior to the Change in Control; a reduction in the aggregate of the Executive's ’s Base Pay and and/or Incentive Pay received from the Company, ; or the termination of the Executive's ’s rights to any Employee Benefits to which he the Executive was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive that, following a Change in Control, as a result of a change in circumstances significantly affecting the Executive’s position(s), including without limitation, a change in the scope of the business or other activities for which the Executive was responsible immediately prior to a Change in Control, the Executive has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in any of the authorities, powers, functions, responsibilities or duties attached to the position(s) held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assetsassets (including, without limitation, by means of the sale of the capital stock or assets of one or more direct or indirect subsidiaries of the Company), unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereofhereof (in which case, such entity shall be deemed to be the “Company” hereunder);
(CE) The Company requires shall require (I) that the principal place of work of the Executive to have or the appropriate principal executive office of the Company or the Company’s operating division or subsidiary for which the Executive performed the majority of his principal location of work services during the twelve (12) – month period preceding the Change in Control be changed to any location which is in excess of 50 forty (40) miles from the location thereof immediately prior to the Change of in Control or to (II) that the Executive travel away from his the Executive’s office in the course of discharging his the Executive’s responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him the Executive prior to the Change of Control in Control, without, in either case, his the Executive’s prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section Subsection 4(a) hereof or by the Executive pursuant to Section Subsection 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, then notwithstanding anything herein to the contrary, the Executive shall have no further obligation or liability to the Company hereunder with respect to his the Executive’s prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Consolidated Graphics Inc /Tx/)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement the Executive’s employment may be terminated by the Company during the Period of Employment and the Executive shall not be entitled to the benefits provided by Section 5 hereof only upon the occurrence of one or more of the following events:
(i) The Executive’s death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(iiiii) For "“Cause", ,” which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;; or
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in ; and any Competitive Activity; or
(F) an such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "“intentional" ” if it was due primarily to an error in judgment or negligence, but shall be deemed "“intentional" ” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "“Cause" ” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with Employment, the right Executive shall be entitled to the benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive Executive, which termination shall be for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's ’s disability and the actual receipt of disability benefits in accordance with Section 4(a)(i4(a)(ii) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect, re-elect or otherwise maintain the Executive in the office or position in the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto) if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, any reduction in the aggregate of the Executive's ’s Base Pay and Incentive Pay received from the Company, or the termination of the Executive's ’s rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive made in good faith that as a result of a Change in Control and a change in circumstances thereafter significantly affecting his position, including without limitation a change in the scope of the business or other activities for which he was responsible immediately prior to the Change in Control, he has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CE) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed changed, to any location which is in excess of 50 fifty (50) miles from the location thereof immediately prior to the Change of Control or the Company shall require the Executive to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior written consent;; or
(DF) Any Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Executive Change in Control Agreement (Lamson & Sessions Co)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, of and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(iiiii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, hereof the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially and demonstrably harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "'intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his this action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, the in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with Employment, and the Executive shall be entitled to have the right to benefits as provided in Section 5 hereof hereof, upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive prior to the date upon which the Executive shall have attained age 65, which termination shall be for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; , or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect or re-elect the Executive to the office of the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, a reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive made in good faith that as a result of a Change in Control and a change in circumstances thereafter significantly affecting his position, including, without limitation, a change in the scope of the business or other activities for which he was responsible immediately prior to a Change in Control, that he has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within 10 calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CE) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed to any location which is in excess of 50 25 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, agreement policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall shall, have no further obligation or liability to the Company hereunder with respect to his prior or to any future employment by the Company.
Appears in 1 contract
Sources: Employment Agreement (International Technology Corp)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement the Executive’s employment may be terminated by the Company during the Period of Employment and the Executive shall not be entitled to the benefits provided by Section 5 hereof only upon the occurrence of one or more of the following events:
(i) The Executive’s death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(iiiii) For "“Cause"”, which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;; or
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in ; and any Competitive Activity; or
(F) an such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "“intentional" ” if it was due primarily to an error in judgment or negligence, but shall be deemed "“intentional" ” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "“Cause" ” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with Employment, the right Executive shall be entitled to the benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive which termination shall be for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's ’s disability and the actual receipt of disability benefits in accordance with Section 4(a)(i4(a)(ii) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect, re-elect or otherwise maintain the Executive in the office or position in the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto) if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, any reduction in the aggregate of the Executive's ’s Base Pay and Incentive Pay received from the Company, or the termination of the Executive's ’s rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive made in good faith that as a result of a Change in Control and a change in circumstances thereafter significantly affecting his position, including without limitation a change in the scope of the business or other activities for which he was responsible immediately prior to the Change in Control, he has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CE) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed changed, to any location which is in excess of 50 fifty (50) miles from the location thereof immediately prior to the Change of Control or the Company shall require the Executive to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior written consent;; or
(DF) Any Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Executive Change in Control Agreement (Lamson & Sessions Co)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence thereafter of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, to the long-term disability Disability Plan or any successor plan in effect for senior executives or, if applicable, employees of the Company immediately adopted prior to the a Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to the property of the Company;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive ActivityActivity (as that term is hereafter defined) while the Executive remains in the employ of the Company; or
(F) an and any such act leading shall be determined by the Directors of the Company as hereafter provided to a conviction of a felony or a misdemeanor involving moral turpitudehave been materially harmful to the Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed for "intentionalCause" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board Direc- tors then in office at a meeting of the Board Directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the BoardDirectors), finding that, in the good faith opinion of the BoardDirectors, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to receive benefits as provided in under Section 5 hereof and, if applicable, Section 6 hereof, only upon the occurrence thereafter of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive during the Period of Employment, unless (x) Cause for any reason other than for Cause termination shall exist or (y) as a result of the death of the Executive or (z) by reason of the Executive's disability and the actual receipt of disability benefits as provided in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after during the Change in Control Period of Employment and upon the occurrence of any of the following events:
(A) Failure to elect, reelect or otherwise maintain the Executive in the office or position in the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereof) if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties in respect of the Company which the Executive had immediately prior to the Change in Control, a reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Company by clear and convincing evidence) that a change in circumstances has occurred significantly affecting his position, including without limitation a change in the scope of the business or other activities for which he was responsible or a substantial reduction in any of the resources available to carry out any of the authorities, powers, functions, responsibilities or duties that he had immediately prior to the Change in Control, has been rendered substantially unable to carry out, has been substantially hindered in the performance of or has suffered a substantial reduction in any of such authorities, powers, functions, responsibilities or duties, which situation is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, assets unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 8 hereof;
(CE) The relocation of the Company's principal executive offices or the requirement by the Company requires that the Executive to have change his principal location of work changed to any location which is in excess of 50 35 miles from the his principal location thereof immediately prior to the Change of in Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either than 20 consecutive cal- endar days or an aggregate of more than 30 calendar days in any calendar year) than was required of him prior to the Change of Control without, consecutive 90 calendar-day period without in either case, case his prior written consent;; or
(DF) Any Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company. The Executive's continued employment shall constitute consent to, and a waiver of rights with respect to, any event described in this Section 4(b)(ii) unless the Executive terminates his employment with the Company or any successor thereto; or
(E) The removal within 120 days after the Executive has actual knowledge of the Executive occurrence of an event described in this Section 4(b)(ii) that is not remedied as provided herein. The parties agree that any consent to or waiver of any such event shall not be deemed to constitute a Director consent to or waiver of the Company (or any successor theretoother circumstance constituting an event described in this Section 4(b)(ii), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) Notwithstanding anything contained in this Agreement to the contrary, in the event of a Change in Control, the Executive may terminate employment with the Company for any reason, or without reason, during the 60-day period immediately following the first anniversary of the first occurrence of a Change in Control, with the right to severance compensation as provided in Section 5 hereof and, if applicable, Section 6 hereof.
(d) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) or Section 4(c) hereof shall not affect any rights which the Executive may have pursuant to any other agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof; provided, however, that if the Executive shall have received or shall be receiving benefits under Section 5 hereof and, if applicable, Section 6 hereof, the Executive shall not be entitled to receive benefits under any other policy, plan, program or arrangement of the Company providing severance compensation to which the Executive would otherwise be entitled. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
(e) The Company shall provide the Executive with timely notice of any of the events referred to in Section 4(b)(ii)(D) hereof so that a determination can be made as to the assumption of duties and obligations by any successor or successors.
Appears in 1 contract
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence thereafter of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, to the long-term disability Disability Plan or any successor plan in effect for senior executives or, if applicable, employees of the Company immediately adopted prior to the a Change in Control; or
(ii) For "“Cause"”, which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to the property of the Company;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive ActivityActivity (as that term is hereafter defined) while the Executive remains in the employ of the Company; or
(F) an and any such act leading shall be determined by the Directors of the Company as hereafter provided to a conviction of a felony or a misdemeanor involving moral turpitudehave been materially harmful to the Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if for “Cause” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "“Cause" ” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board Directors then in office at a meeting of the Board Directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the BoardDirectors), finding that, in the good faith opinion of the BoardDirectors, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail; provided, however, that in the event of a dispute as to whether Cause exists, no claim by the Company that Cause exists shall be given effect unless the Company establishes by clear and convincing evidence that Cause exists. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to receive benefits as provided in under Section 5 hereof and, if applicable, Section 6 hereof, only upon the occurrence thereafter of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive during the Period of Employment, unless (x) Cause for any reason other than for Cause termination shall exist or (y) as a result of the death of the Executive or (z) by reason of the Executive's ’s disability and the actual receipt of disability benefits as provided in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after during the Change in Control Period of Employment and upon the occurrence of any of the following events:
(A) Failure to elect, reelect or otherwise maintain the Executive in the office or position in the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereof) if the Executive shall have been a Director of the Company immediately prior to the Change in Control or, if the Executive was an executive officer of the Company immediately prior to the Change in Control, the failure of the Executive to be an executive officer of a public company following such Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties in respect of the Company which the Executive had immediately prior to the Change in Control, a reduction in the aggregate of the Executive's ’s Base Pay and Incentive Pay received from the Company, or the termination of the Executive's ’s rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Company by clear and convincing evidence) that a change in circumstances has occurred significantly affecting his position, including without limitation a change in the scope of the business or other activities for which he was responsible or a substantial reduction in any of the resources available to carry out any of the authorities, powers, functions, responsibilities or duties that he had immediately prior to the Change in Control, has been rendered substantially unable to carry out, has been substantially hindered in the performance of or has suffered a substantial reduction in any of such authorities, powers, functions, responsibilities or duties, which situation is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, assets unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 8 hereof;
(CE) The relocation of the Company’s principal executive offices or the requirement by the Company requires that the Executive to have change his principal location of work changed to any location which is in excess of 50 35 miles from the his principal location thereof immediately prior to the Change of in Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either than 20 consecutive calendar days or an aggregate of more than 30 calendar days in any calendar year) than was required of him prior to the Change of Control without, consecutive 90 calendar-day period without in either case, case his prior written consent;; or
(DF) Any Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company. The Executive’s continued employment shall constitute consent to, and a waiver of rights with respect to, any event described in this Section 4(b)(ii) unless the Executive terminates his employment with the Company or any successor thereto; or
(E) The removal within 120 days after the Executive has actual knowledge of the Executive occurrence of an event described in this Section 4(b)(ii) that is not remedied as provided herein. The parties agree that any consent to or waiver of any such event shall not be deemed to constitute a Director consent to or waiver of the Company (or any successor theretoother circumstance constituting an event described in this Section 4(b)(ii), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) Notwithstanding anything contained in this Agreement to the contrary, in the event of a Change in Control, the Executive may terminate employment with the Company for any reason, or without reason, during the 60-day period immediately following the first anniversary of the first occurrence of a Change in Control, with the right to severance compensation as provided in Section 5 hereof and, if applicable, Section 6 hereof.
(d) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) or Section 4(c) hereof shall not affect any rights which the Executive may have pursuant to any other agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof; provided, however, that if the Executive shall have received or shall be receiving benefits under Section 5 hereof and, if applicable, Section 6 hereof, the Executive shall not be entitled to receive benefits under any other policy, plan, program or arrangement of the Company providing severance compensation to which the Executive would otherwise be entitled. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
(e) The Company shall provide the Executive with timely notice of any of the events referred to in Section 4(b)(ii)(D) hereof so that a determination can be made as to the assumption of duties and obligations by any successor or successors.
Appears in 1 contract
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive Employee is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive Employee shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in any Competitive Activity; or
(F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive Employee shall be deemed "intentional" intentional if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" intentional only if done, or omitted to be done, by the Executive Employee not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive Employee shall not be deemed to have been terminated for "Cause" Cause hereunder unless and until there shall have been delivered to the Executive Employee a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive Employee and an opportunity for the ExecutiveEmployee, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive Employee had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive Employee or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive Employee during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive Employee for any reason other than for Cause or as a result of the death of the Executive Employee or by reason of the Executive's Employee’s disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive Employee of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the Executive's Employee’s Base Pay and Incentive Pay received from the Company, or the termination of the Executive's Employee’s rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the ExecutiveEmployee, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive Employee of such change, reduction or termination, as the case may be;
(B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(C) The Company requires the Executive Employee to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(D) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive Employee pursuant to Section 4(b) hereof shall not affect any rights which the Executive Employee may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive Employee is terminated under circumstances in which the Executive Employee is not entitled to any payments under Sections 3 or 5 hereof, the Executive Employee shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Southwest Bancorp of Texas Inc)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company Parent during the Period of Employment only upon the occurrence thereafter of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, to the long-term disability Disability Plan or any successor plan in effect for senior executives or, if applicable, employees of the Company immediately adopted prior to the a Change in Control; or
(ii) For "“Cause"”, which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Parent and/or the Company;
(B) intentional wrongful damage to the property of the Parent and/or the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Parent and/or the Company;; or
(ED) intentional wrongful engagement in any Competitive ActivityActivity (as that term is hereafter defined) while the Executive remains in the employ of the Parent and/or the Company; or
(F) an and any such act leading shall be determined by the Directors of the Parent as hereafter provided to a conviction of a felony or a misdemeanor involving moral turpitudehave been materially harmful to the Parent and/or the Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if for “Cause” unless done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Parent and/or the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "“Cause" ” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board Directors then in office at a meeting of the Board Directors called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the BoardDirectors), finding that, in the good faith opinion of the BoardDirectors, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to receive benefits as provided in under Section 5 hereof and, if applicable, Section 6 hereof, only upon the occurrence thereafter of one or more of the following events:
(i) Any termination by the Company Parent and/or the Company, as applicable, of the employment of the Executive during the Period of Employment, unless (x) Cause for any reason other than for Cause termination shall exist or (y) as a result of the death of the Executive or (z) by reason of the Executive's ’s disability and the actual receipt of disability benefits as provided in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after Parent and/or the Change in Control Company, as applicable, during the Period of Employment and upon the occurrence of any of the following events:
(A) Failure to elect, reelect or otherwise maintain the Executive in the office or position in the Parent and/or the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Parent (or any successor thereof) if the Executive shall have been a Director of the Parent immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties in respect of the Parent and/or the Company, as applicable, which the Executive had immediately prior to the Change in Control, a reduction in the aggregate of the Executive's ’s Base Pay and Incentive Pay received from the Parent and/or the Company, as applicable, or the termination of the Executive's ’s rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company Parent of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Parent by clear and convincing evidence) that a change in circumstances has occurred significantly affecting his position, including without limitation a change in the scope of the business or other activities for which he was responsible or a substantial reduction in any of the resources available to carry out any of the authorities, powers, functions, responsibilities or duties that he had immediately prior to the Change in Control, has been rendered substantially unable to carry out, has been substantially hindered in the performance of or has suffered a substantial reduction in any of such authorities, powers, functions, responsibilities or duties, which situation is not remedied within 10 calendar days after receipt by the Parent of written notice from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company Parent or transfer of all or a significant portion of its business and/or assets, assets unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company Parent under this Agreement pursuant to Section 11 8 hereof;
(CE) The Company requires relocation of the Parent’s principal executive offices or the requirement by the Parent that the Executive to have change his principal location of work changed to any location which is in excess of 50 35 miles from the his principal location thereof immediately prior to the Change of in Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either than 20 consecutive calendar days or an aggregate of more than 30 calendar days in any calendar year) than was required of him prior to the Change of Control without, consecutive 90 calendar-day period without in either case, case his prior written consent;; or
(DF) Any Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company Parent or the Company. The Executive’s continued employment shall constitute consent to, and a waiver of rights with respect to, any successor thereto; or
(Eevent described in this Section 4(b)(ii) The removal unless the Executive terminates his employment with the Parent and/or the Company, as applicable, within 120 days after the Executive has actual knowledge of the Executive occurrence of an event described in this Section 4(b)(ii) that is not remedied as provided herein. The parties agree that any consent to or waiver of any such event shall not be deemed to constitute a Director consent to or waiver of the Company (or any successor theretoother circumstance constituting an event described in this Section 4(b)(ii), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) Notwithstanding anything contained in this Agreement to the contrary, in the event of a Change in Control, the Executive may terminate employment with the Parent and/or the Company for any reason, or without reason, during the 60-day period immediately following the first anniversary of the first occurrence of a Change in Control, with the right to severance compensation as provided in Section 5 hereof and, if applicable, Section 6 hereof.
(d) A termination by the Company Parent pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) or Section 4(c) hereof shall not affect any rights which the Executive may have pursuant to any other agreement, policy, plan, program or arrangement of the Parent and/or the Company providing Employee Benefits, which rights shall be governed by the terms thereof; provided, however, that if the Executive shall have received or shall be receiving benefits under Section 5 hereof and, if applicable, Section 6 hereof, the Executive shall not be entitled to receive benefits under any other policy, plan, program or arrangement of the Parent and/or the Company providing severance compensation to which the Executive would otherwise be entitled. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Parent or the Company hereunder with respect to his prior or any future employment by the Parent and/or the Company.
(e) The Parent shall provide the Executive with timely notice of any of the events referred to in Section 4(b)(ii)(D) hereof so that a determination can be made as to the assumption of duties and obligations by any successor or successors.
Appears in 1 contract
Sources: Service Agreement (TRW Inc)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement the Executive’s employment may be terminated by the Company during the Period of Employment and the Executive shall not be entitled to the benefits provided by Section 5 hereof only upon the occurrence of one or more of the following events:
(i) The Executive’s death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(iiiii) For "“Cause", ,” which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;; or
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in ; and any Competitive Activity; or
(F) an such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "“intentional" ” if it was due primarily to an error in judgment or negligence, but shall be deemed "“intentional" ” only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "“Cause" ” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with Employment, the right Executive shall be entitled to the benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive which termination shall be for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's ’s disability and the actual receipt of disability benefits in accordance with Section 4(a)(i4(a)(ii) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect, re-elect or otherwise maintain the Executive in the office or position in the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto) if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, any reduction in the aggregate of the Executive's ’s Base Pay and Incentive Pay received from the Company, or the termination of the Executive's ’s rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive made in good faith that as a result of a Change in Control and a change in circumstances thereafter significantly affecting his position, including without limitation a change in the scope of the business or other activities for which he was responsible immediately prior to the Change in Control, he has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CE) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed changed, to any location which is in excess of 50 fifty (50) miles from the location thereof immediately prior to the Change of Control or the Company shall require the Executive to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior written consent;; or
(DF) Any Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Executive Change in Control Agreement (Lamson & Sessions Co)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his the Executive's job (with or without reasonable accommodation) because he the Executive has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the a long-term disability plan in effect maintained by or on behalf of the Company for senior executives generally or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", ," which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section Subsection 4(b) hereof, the Executive shall have committed:
(A) Gross negligence an intentional act of material fraud, embezzlement or willful misconduct theft in connection with his the Executive's duties or in the course of his the Executive's employment with the Company;
(B) an act intentional, wrongful damage to material property of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional intentional, wrongful disclosure of material secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his the Executive's action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his the Executive's counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had has committed an act set forth above in this Section Subsection 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his the Executive's beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following eventsevents as determined by the Executive in the sole discretion of the Executive:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section Subsection 4(a)(i) hereof; or
(ii) Termination by the Executive of his the Executive's employment with the Company within three years after (or any successor to or affiliate thereof) during the Change in Control Period of Employment upon the occurrence of any of the following events:
(A) A Failure to elect or reelect the Executive to the office(s) which the Executive held immediately prior to a Change in Control, or failure to elect or reelect the Executive as a director of the Company (or any successor to parent entity thereof) or the removal of the Executive as a director of the Company (or any successor thereto), if the Executive shall have been a director of the Company immediately prior to the Change in Control;
(B) An adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position(s) which the Executive held immediately prior to the Change in Control; a reduction in the aggregate of the Executive's Base Pay and and/or Incentive Pay received from the Company, ; or the termination of the Executive's rights to any Employee Benefits to which he the Executive was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive that, following a Change in Control, as a result of a change in circumstances significantly affecting the Executive's position(s), including without limitation, a change in the scope of the business or other activities for which the Executive was responsible immediately prior to a Change in Control, the Executive has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in any of the authorities, powers, functions, responsibilities or duties attached to the position(s) held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assetsassets (including, without limitation, by means of the sale of the capital stock or assets of one or more direct or indirect subsidiaries of the Company), unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereofhereof (in which case, such entity shall be deemed to be the "Company" hereunder);
(CE) The Company requires shall require (I) that the principal place of work of the Executive to have or the appropriate principal executive office of the Company or the Company's operating division or subsidiary for which the Executive performed the majority of his principal location of work services during the twelve (12)-month period preceding the Change in Control be changed to any location which is in excess of 50 forty (40) miles from the location thereof immediately prior to the Change of in Control or to (II) that the Executive travel away from his the Executive's office in the course of discharging his the Executive's responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him the Executive prior to the Change of Control in Control, without, in either case, his the Executive's prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section Subsection 4(a) hereof or by the Executive pursuant to Section Subsection 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, then notwithstanding anything herein to the contrary, the Executive shall have no further obligation or liability to the Company hereunder with respect to his the Executive's prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Consolidated Graphics Inc /Tx/)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his the Executive's job (with or without reasonable accommodation) because he the Executive has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the a long-term disability plan in effect maintained by or on behalf of the Company for senior executives generally or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", ," which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section Subsection 4(b) hereof, the Executive shall have committed:
(A) Gross negligence an intentional act of material fraud, embezzlement or willful misconduct theft in connection with his the Executive's duties or in the course of his the Executive's employment with the Company;
(B) an act intentional, wrongful damage to material property of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional intentional, wrongful disclosure of material secret processes or confidential orconfidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his the Executive's action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his the Executive's counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had has committed an act set forth above in this Section Subsection 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his the Executive's beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following eventsevents as determined by the Executive in the sole discretion of the Executive:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section Subsection 4(a)(i) hereof; or
(ii) Termination by the Executive of his the Executive's employment with the Company within three years after (or any successor to or affiliate thereof) during the Change in Control Period of Employment upon the occurrence of any of the following events:
(A) A Failure to elect or reelect the Executive to the office(s) which the Executive held immediately prior to a Change in Control, or failure to elect or reelect the Executive as a director of the Company (or any successor to parent entity thereof) or the removal of the Executive as a director of the Company (or any successor thereto), if the Executive shall have been a director of the Company immediately prior to the Change in Control;
(B) An adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position(s) which the Executive held immediately prior to the Change in Control; a reduction in the aggregate of the Executive's Base Pay and and/or Incentive Pay received from the Company, ; or the termination of the Executive's rights to any Employee 7 Benefits to which he the Executive was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive that, following a Change in Control, as a result of a change in circumstances significantly affecting the Executive's position(s), including without limitation, a change in the scope of the business or other activities for which the Executive was responsible immediately prior to a Change in Control, the Executive has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in any of the authorities, powers, functions, responsibilities or duties attached to the position(s) held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assetsassets (including, without limitation, by means of the sale of the capital stock or assets of one or more direct or indirect subsidiaries of the Company), unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereofhereof (in which case, such entity shall be deemed to be the "Company" hereunder);
(CE) The Company requires shall require (I) that the principal place of work of the Executive to have or the appropriate principal executive office of the Company or the Company's operating division or subsidiary for which the Executive performed the majority of his principal location of work services during the twelve (12)-month period preceding the Change in Control be changed to any location which is in excess of 50 forty (40) miles from the location thereof immediately prior to the Change of in Control or to (II) that the Executive travel away from his the Executive's office in the course of discharging his the Executive's responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him the Executive prior to the Change of Control in Control, without, in either case, his the Executive's prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section Subsection 4(a) hereof or by the Executive pursuant to Section Subsection 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, then notwithstanding anything herein to the contrary, the Executive shall have no further obligation or liability to the Company hereunder with respect to his the Executive's prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Consolidated Graphics Inc /Tx/)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement the Executive's employment with the Company and its Subsidiaries may be terminated by the Company and its Subsidiaries during the Period of Employment and the Executive shall not be entitled to the benefits provided by Section 5 hereof only upon the occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company and its Subsidiaries immediately prior to the Change in Control; or
(iiiii) For "Cause", ," which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the CompanyCompany or any Subsidiary;
(CB) intentional wrongful damage to property of the CompanyCompany or any Subsidiary;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;Company or any Subsidiary; or
(ED) intentional wrongful engagement in any competitive activity which would constitute a material breach of the duty of loyalty ("Competitive Activity"); or
(F) an and any such act leading shall have been materially harmful to the Company and its Subsidiaries taken as a conviction of a felony or a misdemeanor involving moral turpitudewhole. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in or not opposed to the best interest of the CompanyCompany and its Subsidiaries. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) A reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(B) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(C) The Company requires the Executive to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;
(D) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Employment Agreement (Diebold Inc)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his the Executive's job (with or without reasonable accommodation) because he the Executive has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the a long-term disability plan in effect maintained by or on behalf of the Company for senior executives generally or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", ," which for purposes of this Agreement shall mean ----- that, prior to any termination pursuant to Section Subsection 4(b) --------------- hereof, the Executive shall have committed:
(A) Gross negligence an intentional act of material fraud, embezzlement or willful misconduct theft in connection with his the Executive's duties or in the course of his the Executive's employment with the Company;
(B) an act intentional, wrongful damage to material property of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional intentional, wrongful disclosure of material secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his the Executive's action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his the Executive's counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had has committed an act set forth above in this Section Subsection 4(a)(ii) and specifying the particulars thereof ------------------- in detail. Nothing herein shall limit the right of the Executive or his the Executive's beneficiaries to contest the validity or propriety of any such determination.
(b) in In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following eventsevents as determined by the Executive in the sole discretion of the Executive:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section Subsection 4(a)(i) hereof; oror ------------------
(ii) Termination by the Executive of his the Executive's employment with the Company within three years after (or any successor to or affiliate thereof) during the Change in Control Period of Employment upon the occurrence of any of the following events:
(A) A Failure to elect or reelect the Executive to the office(s) which the Executive held immediately prior to a Change in Control, or failure to elect or reelect the Executive as a director of the Company (or any successor to parent entity thereof) or the removal of the Executive as a director of the Company (or any successor thereto), if the Executive shall have been a director of the Company immediately prior to the Change in Control;
(B) An adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position(s) which the Executive held immediately prior to the Change in Control; a reduction in the aggregate of the Executive's Base Pay and and/or Incentive Pay received from the Company, ; or the termination of the Executive's rights to any Employee Benefits to which he the Executive was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 ten (10) calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) A determination by the Executive that, following a Change in Control, as a result of a change in circumstances significantly affecting the Executive's position(s), including without limitation, a change in the scope of the business or other activities for which the Executive was responsible immediately prior to a Change in Control, the Executive has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in any of the authorities, powers, functions, responsibilities or duties attached to the position(s) held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten (10) calendar days after written notice to the Company from the Executive of such determination;
(D) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assetsassets (including, without limitation, by means of the sale of the capital stock or assets of one or more direct or indirect subsidiaries of the Company), unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof---------- hereof (in which case, such entity shall be deemed to be the "Company" hereunder);
(CE) The Company requires shall require (I) that the principal place of work of the Executive to have or the appropriate principal executive office of the Company or the Company's operating division or subsidiary for which the Executive performed the majority of his principal location of work services during the twelve (12)-month period preceding the Change in Control be changed to any location which is in excess of 50 forty (40) miles from the location thereof immediately prior to the Change of in Control or to (II) that the Executive travel away from his the Executive's office in the course of discharging his the Executive's responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him the Executive prior to the Change of Control in Control, without, in either case, his the Executive's prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section Subsection 4(a) hereof --------------- or by the Executive pursuant to Section Subsection 4(b) hereof shall not --------------- affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, then notwithstanding anything herein --------------- to the contrary, the Executive shall have no further obligation or liability to the Company hereunder with respect to his the Executive's prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Consolidated Graphics Inc /Tx/)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an An intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect or reelect the Executive to the office of the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, a reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) The liquidationA determination by the Executive made in good faith that, dissolutionfollowing a Change in Control, mergeras a result of a change in circumstances significantly affecting his position, consolidation or reorganization including without limitation, a change in the scope of the Company business or transfer of all other activities for which he was responsible immediately prior to a Change in Control, that he has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations substantial reduction in any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within 10 calendar days after written notice to the Company under this Agreement pursuant to Section 11 hereofform the Executive of such determination;
(CE) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed to any location which is in excess of 50 10 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Landmark Graphics Corp)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has become permanently disabled within the meaning of, and actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(ii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(C) intentional wrongful damage to property of the Company;
(D) intentional wrongful disclosure of secret processes or confidential information of the Company;
(E) intentional wrongful engagement in any Competitive Activity; or
(F) an act leading to a conviction of a felony or a misdemeanor involving moral turpitude. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect or reelect the Executive to the office of the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
B) A material adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, a reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or a significant portion of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization or otherwise) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CD) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed to any location which is in excess of 50 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(DE) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or any future employment by the Company.
Appears in 1 contract
Sources: Change in Control Agreement (Southwest Bancorp Inc /Tx/)
Termination Following a Change in Control. (a) In the event of the occurrence of a Change in Control, this Agreement may be terminated by the Company during the Period of Employment only upon the occurrence of one or more of the following events:
(i) The Executive's death;
(ii) If the Executive is unable to perform the essential functions of his job (with or without reasonable accommodation) because he has shall become permanently disabled within the meaning of, and begins actually begins to receive disability benefits pursuant to, the long-term disability plan in effect for senior executives or, if applicable, employees of the Company immediately prior to the Change in Control; or
(iiiii) For "Cause", which for purposes of this Agreement shall mean that, prior to any termination pursuant to Section 4(b) hereof, the Executive shall have committed:
(A) Gross negligence or willful misconduct in connection with his duties or in the course of his employment with the Company;
(B) an intentional act of fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company;
(CB) intentional wrongful damage to property of the Company;
(DC) intentional wrongful disclosure of secret processes or confidential information of the Company;; or
(ED) intentional wrongful engagement in any Competitive Activity; or
(F) an and any such act leading shall have been materially and demonstrably harmful to a conviction of a felony or a misdemeanor involving moral turpitudethe Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed "intentional" if it was due primarily to an error in judgment or negligence, but shall be deemed "intentional" only if done, or omitted to be done, by the Executive not in good faith and without reasonable belief that his this action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for "Cause" hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters of the Board then in office at a meeting of the Board called and held for such purpose (after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, the Executive had committed an act set forth above in this Section 4(a)(ii4(a)(iii) and specifying the particulars thereof in detail. Nothing herein shall limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.
(b) in the event of the occurrence of a Change in Control, this Agreement may be terminated by the Executive during the Period of Employment with the right to benefits as provided in Section 5 hereof upon the occurrence of one or more of the following events:
(i) Any termination by the Company of the employment of the Executive prior to the date upon which the Executive shall have attained age 65, which termination shall be for any reason other than for Cause or as a result of the death of the Executive or by reason of the Executive's disability and the actual receipt of disability benefits in accordance with Section 4(a)(i) hereof; or
(ii) Termination by the Executive of his employment with the Company within three years after the Change in Control upon the occurrence of any of the following events:
(A) Failure to elect or re-elect the Executive to the office of the Company which the Executive held immediately prior to a Change in Control, or the removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control;
(B) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company which the Executive held immediately prior to the Change in Control, a reduction in the aggregate of the Executive's Base Pay and Incentive Pay received from the Company, or the termination of the Executive's rights to any Employee Benefits to which he was entitled immediately prior to the Change in Control or a reduction in scope or value thereof without the prior written consent of the Executive, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;
(BC) The liquidationA determination by the Executive made in good faith that as a result of a Change in Control and a change in circumstances thereafter significantly affecting his position, dissolutionincluding, mergerwithout limitation, consolidation or reorganization a change in the scope of the business or other activities for which he was responsible immediately prior to a Change in Control, that he has been rendered substantially unable to carry out, has been substantially hindered in the performance of, or has suffered a substantial reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within 10 calendar days after written notice to the Company or transfer from the Executive of all or a significant portion of its business and/or assets, unless the successor or successors such determination;
(by liquidation, merger, consolidation, reorganization or otherwiseD) to which all or a significant portion of its business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company under this Agreement pursuant to Section 11 hereof;
(CE) The Company requires shall relocate its principal executive offices, or require the Executive to have his principal location of work changed to any location which is in excess of 50 25 miles from the location thereof immediately prior to the Change of Control or to travel away from his office in the course of discharging his responsibilities or duties hereunder significantly more (in terms of either consecutive days or aggregate days in any consecutive days or aggregate days in any calendar year) than was required of him prior to the Change of Control without, in either case, his prior consent;; or
(DF) Any material breach of this Agreement by the Company or any successor thereto; or
(E) The removal of the Executive as a Director of the Company (or any successor thereto), if the Executive shall have been a Director of the Company immediately prior to the Change in Control.
(c) A termination by the Company pursuant to Section 4(a) hereof or by the Executive pursuant to Section 4(b) hereof shall not affect any rights which the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof. If this Agreement or the employment of the Executive is terminated under circumstances in which the Executive is not entitled to any payments under Sections 3 or 5 hereof, the Executive shall have no further obligation or liability to the Company hereunder with respect to his prior or to any future employment by the Company.
Appears in 1 contract
Sources: Employment Agreement (Ohm Corp)