Termination Following a Change of Control. (a) If, within eighteen (18) months of a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control. (i) The Accrued Benefits within thirty (30) days following the effective date of such termination. (ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average). (iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease. (b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof. (c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 5 contracts
Sources: Employment Agreement (Blue Ridge Paper Products Inc), Employment Agreement (Blue Ridge Paper Products Inc), Employment Agreement (Blue Ridge Paper Products Inc)
Termination Following a Change of Control. If
(ai) IfExecutive terminates this Agreement for any reason simultaneously with a Change of Control (in which event notice under Section 2 above shall not be necessary and the termination payments to be made under Sections 4(d)(1), within eighteen (184(d)(2) months of and 4(d)(3) shall be paid simultaneously with, and as a “part of, the Change of Control” ), (as defined belowii) your employment is terminated within six (6) months following a Change of Control Executive terminates this Agreement for any reason reason, subject to the notice provisions of Section 2 hereof, or no reason by (iii) within 24 months following a Change of Control, the Company (except a termination by the Company terminates this Agreement during its original term other than for Cause) Cause or for any reason or no reason by you (including any such termination without Executive terminates this Agreement during its original term with Good Reason), the Company shall pay or provide you Executive (and Executive's eligible dependents with respect to paragraph (D) below) the following benefits set forth and payments:
(1) all accrued but unpaid amounts of Base Salary and vacation through the effective date of termination, payable in this paragraph 10(a), subject to accordance with the provisions of paragraphs 24 Sections 3(a) and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a3(d) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.above;
(i2) The Accrued Benefits a termination payment in an amount equal to the product of (x) the number of full and partial years remaining in the Original Term (or, if greater, 2 years) and (y) the One-Year Pay Equivalent, which amount shall be payable within thirty (30) days following of the effective date of such termination.;
(ii3) A lump sum payment within thirty (30any vested benefits or amounts pursuant to Section 3(c), 3(e), 3(f) days following and 3(g) hereof through the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (eachtermination, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation payable in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to accordance with the provisions of paragraph 7, 8, 9 or 11 hereof.any such plan(s); and
(c4) Notwithstanding any other provision the health insurance benefits described in Section 3(c)(1) above for the maximum period permitted under COBRA at the Company's sole expense, together with either (i) additional benefits equivalent to those in effect at the date of this letter agreement to termination, such that Executive will receive Company-paid coverage for a total of 24 months or (ii) if providing such benefits is not permitted by the contrarytax laws or applicable benefit plans, in the event any payment that is either received by you or after-tax equivalent of the premiums paid by the Company on your behalf for such coverage.
3. This Amendment may be executed in one or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code more counterparts which taken together shall constitute one and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementsame instrument.
Appears in 5 contracts
Sources: Employment Agreement (Prime Retail Inc/Bd/), Employment Agreement (Prime Retail Inc/Bd/), Employment Agreement (Prime Retail Inc/Bd/)
Termination Following a Change of Control. (a) If, If the Employee’s employment with the Company terminates as a result of an Involuntary Termination at any time within eighteen (18) months of after a “Change of Control” , and the Employee signs the release of claims pursuant to Section 7 hereto, Employee shall be entitled to the following severance benefits:
(1) Twelve months of Employee’s base salary and any applicable allowances as defined belowin effect as of the date of the termination or, if greater, as in effect in the year in which the Change of Control occurs, less applicable withholding, payable in a lump sum within thirty (30) your employment is terminated for any reason or no reason days of the Involuntary Termination;
(2) all stock options granted by the Company (except a termination by to the Company for Cause) or for any reason or no reason by you (including any Employee prior to the Change of Control shall accelerate and become vested under the applicable option agreements to the extent such stock options are outstanding and unexercisable at the time of such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), and all stock subject to the provisions a right of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) repurchase by the Company (or its successor) within sixty (60) days following the consummation of that was purchased prior to the Change in Control.of Control shall have such right of repurchase lapse;
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum Employee shall be permitted to exercise all vested (including shares that vest as a result of (Athis Agreement) your average Salary plus (B) your average bonus compensation (each, based on stock options granted by the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (Company to the extent permitted under applicable law and Employee prior to the terms Change of such plan) which covers you Control for a period of eighteen two (182) monthsyears following the Termination Date; and
(4) the same level of Company-paid health (i.e., provided that you are medical, vision and dental) coverage and benefits for such coverage as in effect for the Employee (and any eligible and remain eligible for COBRA coveragedependents) on the day immediately preceding the Employee’s Termination Date; and provided, furtherhowever, that (i) the Employee constitutes a qualified beneficiary, as defined in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(bSection 4980B(g)(1) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended; and (ii) Employee elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (the “CodeCOBRA”), within the time period prescribed pursuant to COBRA. The Company shall continue to provide Employee with such Company-paid coverage until the earlier of (i) the date Employee (and any similar tax that may hereafter be imposed by any taxing authority)his/her eligible dependents) is no longer eligible to receive continuation coverage pursuant to COBRA, or (ii) twelve (12) months from the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementTermination Date.
Appears in 4 contracts
Sources: Change of Control Severance Agreement (Threshold Pharmaceuticals Inc), Change of Control Severance Agreement (Threshold Pharmaceuticals Inc), Change of Control Severance Agreement (Threshold Pharmaceuticals Inc)
Termination Following a Change of Control. (a) IfIn the event the Employer terminates the Executive’s employment, or the Executive terminates employment with Good Reason, in either case within eighteen (18) six months of prior to, or 24 months after, a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall Employer shall, within 60 days of termination, pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions Executive a lump sum cash payment equal to 2.99 times the average annual compensation paid to the Executive by Employer and included in the Executive’s gross income for income tax purposes during the five full calendar years, or shorter period of paragraphs 24 and 25 hereof. Notwithstanding employment, that immediately precede the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of year during which the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately ceaseControl occurs.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contraryExcept as set forth below, in the event it shall be determined that any payment that is either received or distribution by you or for the account of the Employer to or for the benefit of the Executive (whether paid by or payable or distributed or distributable pursuant to the Company on your behalf terms of this Agreement or otherwise, but determined without regard to any property, or any other benefit provided to you additional payments required under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the CompanySection 4) (collectively the a “Company PaymentsPayment”), will ) would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, collectively, the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of the Excise Tax and all other taxes (including, without limitation, income taxes) that are imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 4(b), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any similar Excise Tax) as compared to the net after-tax that may hereafter be imposed by any taxing authority)proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the Company Payments will be automatically reduced aggregate, to an amount (the “Reduced Amount”) such that equals the product receipt of 2.99 multiplied by your “base amount” (as determined Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive, the Payments, in accordance with Section 280G of the Code aggregate, made to the Executive shall not exceed the Reduced Amount, and the treasury regulations thereunder)Executive shall have the right, in the Executive’s sole discretion, to designate those payments or benefits that should be reduced or eliminated to satisfy such that you will not be subject to the Excise Tax. Unless otherwise elected by yourequirement.
(c) For purposes of this Agreement, such reduction a “Change of Control” shall first be applied to any Company Payment payable to you under this letter agreement.mean:
Appears in 2 contracts
Sources: Employment Agreement (Partners Trust Financial Group Inc), Employment Agreement (Partners Trust Financial Group Inc)
Termination Following a Change of Control. (a) If, within eighteen twenty-four (1824) months of following a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company terminates this Agreement and Executive's services other than for cause or Executive terminates this Agreement with good reason, in either case, by giving thirty (30) days' prior written notice, Executive (and Executive's eligible dependents with respect to paragraph (D) below) shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any the following benefits and payments:
(A) all accrued but unpaid amounts of the payments or benefits set forth Base Salary through the effective date of termination, payable in this paragraph 10(aaccordance with the provisions of Section 3(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.above;
(iB) The Accrued Benefits a termination payment in an amount equal to $1,600,000, payable within thirty (30) days of the effective date of termination;
(C) any vested benefits or amounts pursuant to Sections 3(c), 3(d), 3(e) and 3(f) hereof through the effective date of termination, payable in accordance with the provisions of any such plan(s);
(D) the health insurance benefits specified in Section 3(c)(1) above for a period of twenty-four (24) months following the effective date of termination, and following such termination.
time period, the Executive shall be entitled to all rights afforded to him under COBRA to purchase continuation coverage of such health insurance benefits for himself and his dependents for the maximum period permitted by law (ii) A lump sum payment within thirty with respect to this paragraph (30) days D), to the extent required by applicable law, Executive shall be deemed to have elected to exercise his rights under COBRA as of the first day following the effective date of such termination equal to three termination); and
(3E) times the sum life insurance benefits specified in Section 3(f) above for a period of twenty-four (A24) your average Salary plus (B) your average bonus compensation (each, based on months following the last five years’ average)effective date of termination.
(iiiF) Subject to (A) your timely election Executive shall be fully vested in all amounts accrued or accumulated on behalf of continuation coverage Executive under any non-qualified retirement plan established or maintained by the COBRACompany, and (B) your payment of the COBRA premiums associated therewith, continued participation Company will promptly pay or distribute all such amounts to Executive in the Company’s group health plan (to the extent permitted under applicable law and accordance with the terms of such plan) which covers you for a period plan as in effect on the date of eighteen this Agreement (18) monthsor as of Executive's employment termination, provided that you are eligible and remain eligible for COBRA coverage; and providedif more favorable to Executive). If Executive is not fully vested in his accounts or benefits under the Company's qualified retirement plan at his employment termination pursuant to this Section, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately ceasewill make a cash payment to Executive, within 30 days of Executive's employment termination, equal to the amount of such account or benefit that is forfeited.
(bG) Notwithstanding any other provision of this letter agreement to All stock awards or grants under the contraryPrime Retail, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits Inc. [1998] Stock Incentive Plan shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions fully vested any exercisable as of paragraph 7, 8, 9 or 11 hereofExecutive's employment termination.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 2 contracts
Sources: Employment Agreement (Prime Retail Inc/Bd/), Employment Agreement (Prime Retail Inc/Bd/)
Termination Following a Change of Control. (a) IfIn the event the Employer terminates the Executive's employment, or the Executive terminates employment with Good Reason, in either case within eighteen (18) six months of prior to, or 24 months after, a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall Employer shall, within 60 days of termination, pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions Executive a lump sum cash payment equal to 2.99 times the average annual compensation paid to the Executive by Employer and included in the Executive's gross income for income tax purposes during the five full calendar years, or shorter period of paragraphs 24 and 25 hereof. Notwithstanding employment, that immediately precede the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of year during which the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately ceaseControl occurs.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contraryExcept as set forth below, in the event it shall be determined that any payment that is either received or distribution by you or for the account of the Employer to or for the benefit of the Executive (whether paid by or payable or distributed or distributable pursuant to the Company on your behalf terms of this Agreement or otherwise, but determined without regard to any property, or any other benefit provided to you additional payments required under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the CompanySection 4) (collectively the “Company Payments”), will a "Payment") would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, collectively, the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of the Excise Tax and all other taxes (including, without limitation, income taxes) that are imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 4(b), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any similar Excise Tax) as compared to the net after-tax that may hereafter be imposed by any taxing authority)proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the Company Payments will be automatically reduced aggregate, to an amount (the "Reduced Amount") such that equals the product receipt of 2.99 multiplied by your “base amount” (as determined Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive, the Payments, in accordance with Section 280G of the Code aggregate, made to the Executive shall not exceed the Reduced Amount, and the treasury regulations thereunder)Executive shall have the right, in the Executive's sole discretion, to designate those payments or benefits that should be reduced or eliminated to satisfy such that you will not be subject to the Excise Tax. Unless otherwise elected by yourequirement.
(c) For purposes of this Agreement, such reduction a "Change of Control" shall first be applied to any Company Payment payable to you under this letter agreement.mean:
Appears in 2 contracts
Sources: Employment Agreement (Partners Trust Financial Group Inc), Employment Agreement (Partners Trust Financial Group Inc)
Termination Following a Change of Control. (a) IfNotwithstanding anything in this Section 7 to the contrary, if Executive’s employment is involuntarily terminated by the Company without Cause or Executive terminates employment for Good Reason within eighteen (18) 12 months of following a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you , then Executive shall receive, in complete satisfaction of all payments (including any such termination without Good Reason)severance) due under this Agreement, the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.
(i) Base Salary relating to Executive’s services prior to the termination date and (ii) a lump sum payment of $999,000. The Accrued Benefits payments referred to in subclauses (i) and (ii) of this Section 7(f) shall be paid as soon as practicable, and in all events within thirty (30) days following termination of employment; provided that if the effective date Change of such termination.
(ii) A lump sum payment within thirty (30) days following Control does not satisfy the effective date definition of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation a change in the Company’s group health plan (to the extent permitted under applicable law and the terms ownership or effective control of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any propertycorporation, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A, then the Companypayment referred to in subclause (ii) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Companyof this Section 7(f) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined paid ratably for 24 months in accordance with Company’s existing payroll practices, such payment to begin as soon as practicable, and in all events within 30 days following termination of employment; provided, further, that if amounts paid under this Section 280G 7(f) are determined to be “deferred compensation” within the meaning of Section 409A and Executive is deemed to be a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code and the treasury regulations thereunderissued thereunder relating to deferred compensation, then the payment referred to in subclause (i) of this Section 7(f) and the first of the ratable payments referred to in subclause (ii) of this Section 7(f) shall be paid on the Company’s first regularly scheduled pay date occurring more than six months following Executive’s termination of employment (the remainder of the ratable payments referred to in subclause (ii) to continue to be paid ratably in accordance with such subclause). In addition, upon a termination of employment described in this Section 7(f), such that you will not be subject to (iii) Executive shall receive the Excise Tax. Unless otherwise elected benefits set forth in Section 7(g) and (iv) all unvested equity awards granted on or after the Effective Date and held by youExecutive shall become fully vested and, such reduction shall first be applied to any Company Payment payable to you under this letter agreementin the case of stock options, exercisable.
Appears in 2 contracts
Sources: Employment Agreement (ExlService Holdings, Inc.), Employment Agreement (ExlService Holdings, Inc.)
Termination Following a Change of Control. If (ai) IfExecutive terminates this Agreement for any reason simultaneously with a Change of Control (in which event notice under Section 2 above shall not be necessary and the termination payments to be made under Sections 4(d)(1), within eighteen (184(d)(2) months of and 4(d)(3) shall be paid simultaneously with, and as a “part of, the Change of Control” ), (as defined belowii) your employment is terminated within six (6) months following a Change of Control Executive terminates this Agreement for any reason reason, subject to the notice provisions of Section 2 hereof, or no reason by (iii) within 24 months following a Change of Control, the Company (except a termination by the Company terminates this Agreement during its Original Term other than for Cause) Cause or for any reason or no reason by you (including any such termination without Executive terminates this Agreement during its Original Term with Good Reason), the Company shall pay or provide you Executive (and Executive's eligible dependents with respect to paragraph (D) below) the following benefits set forth and payments:
(1) all accrued but unpaid amounts of Base Salary and vacation through the effective date of termination, payable in this paragraph 10(a), subject to accordance with the provisions of paragraphs 24 Sections 3(a) and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a3(d) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.above;
(i2) The Accrued Benefits a termination payment in an amount equal to 1.5 times the One-Year Pay Equivalent, which amount shall be payable within thirty (30) days following of the effective date of such termination.;
(ii3) A lump sum payment within thirty (30notwithstanding any other terms of any plan, any vested benefits or amounts pursuant to Section 3(c), 3(e) days following and 3(f) hereof through the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (eachtermination, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation payable in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to accordance with the provisions of paragraph 7, 8, 9 or 11 hereof.any such plan(s); and
(c4) Notwithstanding any other provision the health insurance benefits described in Section 3(c)(1) above for the maximum period permitted under COBRA at the Company's sole expense, together with either (i) additional benefits equivalent to those in effect at the date of this letter agreement to termination, such that Executive will receive Company-paid coverage for a total of 24 months or (ii) if providing such benefits is not permitted by the contrarytax laws or applicable benefit plans, in the event any payment that is either received by you or after-tax equivalent of the premiums paid by the Company on your behalf or any propertyfor such coverage. The termination benefits pursuant to subsections (a) to (d) of this Section 4 are mutually exclusive, or any and Executive shall not be entitled to seek termination benefits under more than one such subsection (other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated than as contingent on a change of ownership or control of the Company (or described in the ownership last paragraph of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”Section 4(a)(1), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 1 contract
Termination Following a Change of Control. (a) IfExpressly exempting the pending merger of the Company with LILCO pursuant to that certain Plan of Merger Agreement executed between the Company and LILCO on or about December 29, 1996 and notwithstanding anything to the contrary contained herein, or within eighteen the "Senior Executive Change Of Control Severance Plan", as adopted, should Employee at any time within three (183) months years of a “Change of Control” Control (as defined below) your employment is terminated for any reason or no reason by cease to be an employee of the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reasonits successor), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions by reason of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a(i) if you are offered “Comparable Employment” (as defined below) termination by the Company (or its successor) other than for Cause (which for purposes of this paragraph shall be limited to the following: (A) a conviction of or a plea of nolo contendere to the charge of a felony involving moral turpitude (which, through lapse of time or otherwise, is not subject to appeal); or (B) the unauthorized absence of Employee from work (other than for sick leave, disability or vacation) for a period of 30 working days or more during a period of 45 working days or (ii) voluntary termination by Employee for "good reason upon Change of Control" (as defined below), the Company (or its successor) shall pay to Employee, in cash, within sixty ten (6010) days of such termination the following the consummation of the Change in Control.severance payments and benefits:
(i) The Accrued Benefits within thirty (30A lump-sum payment equal to 299% of Employee's Base Compensation at the rate stated in Section III(a) days following the effective date of such termination.
this Agreement; and (ii) A lump lump-sum payment within thirty (30) days following equal to the effective amount of any accrued but unpaid Incentive Compensation, Long-Term Performance Incentive Compensation and Signing Bonus and other benefits under this Agreement to the date of such termination equal termination. The Company (or its successor) shall also provide continuing coverage and benefits comparable to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (eachall life, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, health and (B) your payment disability plans of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you Company for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in 36 months from the event that you obtain other employment that offers group health benefits, such continuation date of coverage by the Company shall immediately ceasetermination.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 1 contract
Termination Following a Change of Control. (a) IfIn the event of a “Termination” (as defined in paragraph 4(d) below) of Executive’s employment in anticipation of, or within 24 months after, a Change of Control (as defined in paragraph 4(c) below), the Employer shall:
(i) Within seven (7) business days after termination, pay to Executive two (2) times the average annual compensation paid to Executive by Employer and included in Executive’s gross income for income tax purposes for the three (3) full taxable years that immediately precede the year during which the Change of Control occurs (adjusted to include bonuses paid, rather than accrued, in respect of such years);
(ii) Provide Executive with his rights, if any, to receive continued health care benefits under COBRA, and pay Executive, within eighteen seven (187) months business days after termination of employment, a lump sum amount equal to two (2) times the Company’s annual cost of providing health, life and long-term disability insurance coverages and other fringe benefits provided to Executive immediately prior to such termination; and
(iii) Treat as immediately vested and exercisable all forms of equity-based compensation, including unexpired stock options and unvested restricted stock previously granted to Executive that are not otherwise vested or exercisable or that have not been exercised.
(b) If any portion of the amounts paid to, or value received by, Executive following a Change of Control (whether paid or received pursuant to this paragraph 4 or otherwise) constitutes an “excess parachute payment” within the meaning of Internal Revenue Code Sections 280G and 4999, then the lump sum cash payments to Executive pursuant to this Agreement shall be reduced to the extent necessary to eliminate the application of Internal Revenue Code Sections 280G and 4999.
(c) For purposes of paragraph 4(a), a “Change of Control” shall be deemed to have occurred if:
(i) any “person,” including a “group” as determined in accordance with the Section 13(d)(3) of the Securities Exchange Act of 1934 (“Exchange Act”), is or becomes the beneficial owner, directly or indirectly, of securities of Employer representing 30% or more of the combined voting power of Employer’s then outstanding securities;
(ii) as a result of, or in connection with, any proxy contest, tender offer or exchange offer, merger or other business combination (a “Transaction”), the persons who were directors of Employer before the Transaction shall cease to constitute a majority of the Board of Directors of Employer or any successor to Employer;
(iii) Employer is merged or consolidated with another corporation and as a result of the merger or consolidation less than 70% of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former stockholders of Employer, other than
(A) affiliates within the meaning of the Exchange Act, or (B) any party to the merger or consolidation;
(iv) a tender offer or exchange offer is made and consummated for the ownership of securities of Employer representing 30% or more of the combined voting power of Employer’s then outstanding voting securities; or
(v) Employer transfers substantially all of its assets to another corporation which is not controlled by Employer.
(d) For purposes of paragraph 4(a), “Termination” shall mean
(i) termination by the Employer (or successor entity) of the employment of Executive for any reason other than death, Disability (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Causein paragraph 4(c) or termination for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable EmploymentCause” (as defined belowin paragraph 4(d)), or
(ii) subject to Section 4(e), resignation by the Company Executive for the following reasons: (A) a significant change in the nature or its successor) within sixty (60) days following the consummation scope of the Executive’s duties or authority from that prior to a Change of Control or the Executive’s having to report directly to anyone other than chief executive officer of Employer’s ultimate parent, (B) a reduction in Control.
the Executive’s total compensation (iincluding accrued bonus or benefits) The Accrued Benefits from that prior to a Change of Control that is not consistent with the provisions of subparagraph 2(b) hereof, (C) a material breach of this Agreement by the Employer that is not or cannot be cured within thirty (30) days following of the Executive giving notice of the breach or (D) a change in the general location where the Executive is required to perform services from that prior to a Change of Control which shall include requiring Executive to relocate more than fifty (50) miles from Syracuse, New York.
(e) In the event that Executive elects to resign in accordance with Section 4(d)(ii), Executive shall deliver written notice thereof to Employer’s chief executive officer and the chief executive officer of Employer’s ultimate parent at least ninety (90) days in advance of the effective date of such terminationExecutive’s resignation.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 1 contract
Sources: Employment Agreement (Alliance Financial Corp /Ny/)
Termination Following a Change of Control. If (ai) IfExecutive terminates this Agreement for any reason simultaneously with a Change of Control (in which event notice under Section 2 above shall not be necessary and the termination payments to be made under Sections 4(d)(1), within eighteen (184(d)(2) months of and 4(d)(3) shall be paid simultaneously with, and as a “part of, the Change of Control” ), (as defined belowii) your employment is terminated within six (6) months following a Change of Control Executive terminates this Agreement for any reason reason, subject to the notice provisions of Section 2 hereof, or no reason by (iii) within 24 months following a Change of Control, the Company (except a termination by the Company terminates this Agreement during its Original Term other than for Cause) Cause or for any reason or no reason by you (including any such termination without Executive terminates this Agreement during its Original Term with Good Reason), the Company shall pay or provide you Executive (and Executive's eligible dependents with respect to paragraph (D) below) the following benefits set forth and payments:
(1) all accrued but unpaid amounts of Base Salary and vacation through the effective date of termination, payable in this paragraph 10(a), subject to accordance with the provisions of paragraphs 24 Sections 3(a) and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a3(d) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.above;
(i2) The Accrued Benefits a termination payment in an amount equal to the product of (x) the number of full and partial years remaining in the Original Term (or, if greater, 2 years) and (y) the One-Year Pay Equivalent, which amount shall be payable within thirty (30) days following of the effective date of such termination.;
(ii3) A lump sum payment within thirty (30any vested benefits or amounts pursuant to Section 3(c), 3(e), 3(f) days following and 3(g) hereof throug h the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (eachtermination, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation payable in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to accordance with the provisions of paragraph 7, 8, 9 or 11 hereof.any such plan(s);
(c4) Notwithstanding any other provision the health insurance benefits described in Section 3(c)(1) above for the maximum period permitted under COBRA at the Company's sole expense, together with either (i) additional benefits equivalent to those in effect at the date of this letter agreement to termination, such that Executive will receive Company-paid coverage for a total of 24 months or (ii) if providing such benefits is not permitted by the contrarytax laws or applicable benefit plans, in the event any payment that is either received by you or after-tax equivalent of the premiums paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or for such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementcoverage.
Appears in 1 contract
Termination Following a Change of Control. (a) IfIn the event of a "Termination" (as defined in subparagraph 4(d) below) of Employee's employment within 24 months after a Change of Control (as defined in subparagraph 4(c) below), the Employer shall, within eighteen 60 days of termination, pay to Employee 2.99 times the average annual compensation paid to Employee by Employer and included in Employee's gross income for income tax purposes during the five full calendar years, or shorter period of employment, that immediately precede the year during which the Change of Control occurs.
(18b) months If any portion of the amounts paid to, or value received by, Employee following a “Change of Control (whether paid or received pursuant to this paragraph 4 or otherwise) would constitute an "excess parachute payment" within the meaning of Internal Revenue Code Sections 280G and 4999, then payments to Employee shall be limited to the extent necessary to ensure that no amount paid to Employee will constitute an "excess parachute payment" within the meaning of Internal Revenue Code Sections 280G and 4999. The maximum payable under this Section 4. (b) is calculated without considering any other compensation payable to the Employee, including any benefits paid as a result of accelerated vesting of stock options and restricted stock grants.
(c) For purposes of subparagraph 4(a), a "Change of Control” " shall be deemed to have occurred if:
(i) any "person" (as such term is used in sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act")), other than (i) a holding company to be formed in connections with the conversion of the Bank to the stock form of ownership; or (ii) a trustee or other fiduciary holding securities under an employee benefit plan maintained for the benefit of employees of the Bank, becomes the "beneficial owner" (as defined in Rule 13d-3 promulgated under the 1934 Act), directly or indirectly, of securities issued by the Bank representing 25% or more of the combined voting power of all of the Bank's then outstanding securities; or
(ii) the individuals who on the date this Agreement is made are members of the Board, together with their successors as defined below) your employment is terminated , cease for any reason to constitute a majority of the members of the Board; or
(iii) the shareholders of the Bank approve either:
(A) a merger or no reason consolidation of the Bank with any other corporation, other than a merger or consolidation following which both of the following conditions are satisfied;
(I) either, (a) the members of the Board of the Bank immediately prior to such merger or consolidation constitute at least a majority of the members of the governing body of the institution resulting from such merger or consolidation; or (b) the shareholders of the Bank own securities of the institution resulting from such merger or consolidation representing seventy percent or more of the combined voting power of all such securities then outstanding in substantially the same proportions as their ownership of voting securities of the Bank before such merger or consolidation; and
(II) the entity which results from such merger or consolidation expressly agrees in writing to assume and perform the Bank's obligations under this Agreement; or
(B) a plan of complete liquidation of the Bank or an agreement for the sale or disposition by the Company Bank of all or substantially all of it's assets; and
(except a termination by the Company for Causeiv) any event which would be described in sections (i), (ii) or (iii) if the term "Parent Corporation of the Bank" were substituted for any reason or no reason by you the term "Bank" therein. Such event shall be deemed to be a Change in Control under the relevant provision of sections (including any such termination without Good Reasoni), (ii) or (iii). It is understood and agreed that more than one Change in Control may occur at the Company shall pay same or provide you with different times during the benefits set forth in this paragraph 10(a), subject to Employment Period and that the provisions of paragraphs 24 this Agreement shall apply with equal force and 25 hereof. Notwithstanding the foregoing, you shall not be entitled effect with respect to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the each such Change in Control.
(id) The Accrued Benefits within thirty (30) days following the effective date For purposes of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”subparagraph 4(a), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction "Termination" shall first be applied to any Company Payment payable to you under this letter agreement.mean
Appears in 1 contract
Sources: Employment Agreement (Partners Trust Financial Group Inc)
Termination Following a Change of Control. (a) If, within twelve (12) months following a Change of Control, the Company terminates Executive other than for Cause or Executive voluntarily terminates as a result of a Constructive Termination, then, provided Executive also executes a general release in a form determined by the Company at the time of termination:
(i) Executive will be entitled to receive a severance payment equal to nine (9) months of Executive’s base salary as in effect as of the date of such termination, less applicable withholding, payable in a lump sum within thirty (30) days of the termination;
(ii) The vesting of shares subject to all stock options granted by the Company to Executive prior to the Change of Control which, assuming Executive’s continued employment with the Company, would have become vested and exercisable within eighteen (18) months following the date of a “Change of Control” (termination or Constructive Termination shall accelerate and become vested and exercisable as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).; and
(iii) Subject to if (A1) your timely election of continuation coverage under the COBRAExecutive constitutes a qualified beneficiary, and (Bas defined in Section 4980B(g)(1) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and (2) Executive elects continuation coverage pursuant to Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (the “CodeCOBRA”), within the time period prescribed pursuant to COBRA, reimbursement for health care coverage under COBRA, until the earlier of (and any similar tax that may hereafter be imposed by any taxing authority)x) the date Employee is no longer eligible to receive continuation coverage pursuant to COBRA, the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder)y) six (6) months following such termination, or (z) for such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementshorter period until Executive obtains new employment offering health insurance coverage.
Appears in 1 contract
Termination Following a Change of Control. (a) IfIn the event of a “Termination” (as defined in paragraph 4(d) below) of Executive’s employment in anticipation of, or within 24 months after, a Change of Control (as defined in paragraph 4(c) below), the Employer shall:
(i) Within seven (7) business days after termination, pay to Executive two (2) times the average annual compensation paid to Executive by Employer and included in Executive’s gross income for income tax purposes for the three (3) full taxable years that immediately precede the year during which the Change of Control occurs (adjusted to include bonuses paid, rather than accrued, in respect of such years);
(ii) Provide Executive with his rights, if any, to receive continued health care benefits under COBRA, and pay Executive, within eighteen seven (187) months business days after termination of employment, a lump sum amount equal to two (2) times the Company’s annual cost of providing health, life and long-term disability insurance coverages and other fringe benefits provided to Executive immediately prior to such termination; and
(iii) Treat as immediately vested and exercisable all forms of equity-based compensation, including unexpired stock options and unvested restricted stock previously granted to Executive that are not otherwise vested or exercisable or that have not been exercised.
(b) If any portion of the amounts paid to, or value received by, Executive following a Change of Control (whether paid or received pursuant to this paragraph 4 or otherwise) constitutes an “excess parachute payment” within the meaning of Internal Revenue Code Sections 280G and 4999, then the lump sum cash payments to Executive pursuant to this Agreement shall be reduced to the extent necessary to eliminate the application of Internal Revenue Code Sections 280G and 4999.
(c) For purposes of paragraph 4(a), a “Change of Control” shall be deemed to have occurred if:
(i) any “person,” including a “group” as determined in accordance with the Section 13(d)(3) of the Securities Exchange Act of 1934 (“Exchange Act”), is or becomes the beneficial owner, directly or indirectly, of securities of Employer representing 30% or more of the combined voting power of Employer’s then outstanding securities;
(ii) as a result of, or in connection with, any proxy contest, tender offer or exchange offer, merger or other business combination (a “Transaction”), the persons who were directors of Employer before the Transaction shall cease to constitute a majority of the Board of Directors of Employer or any successor to Employer;
(iii) Employer is merged or consolidated with another corporation and as a result of the merger or consolidation less than 70% of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former stockholders of Employer, other than (A) affiliates within the meaning of the Exchange Act, or (B) any party to the merger or consolidation;
(iv) a tender offer or exchange offer is made and consummated for the ownership of securities of Employer representing 30% or more of the combined voting power of Employer’s then outstanding voting securities; or
(v) Employer transfers substantially all of its assets to another corporation which is not controlled by Employer.
(d) For purposes of paragraph 4(a), “Termination” shall mean
(i) termination by the Employer (or successor entity) of the employment of Executive for any reason other than death, Disability (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Causein paragraph 4(c) or termination for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable EmploymentCause” (as defined belowin paragraph 4(d)), or
(ii) subject to Section 4(e), resignation by the Company Executive for the following reasons: (A) a significant change in the nature or its successor) within sixty (60) days following the consummation scope of the Executive’s duties or authority from that prior to a Change of Control or the Executive’s having to report directly to anyone other than chief executive officer of Employer’s ultimate parent, (B) a reduction in Control.
the Executive’s total compensation (iincluding accrued bonus or benefits) The Accrued Benefits from that prior to a Change of Control that is not consistent with the provisions of subparagraph 2(b) hereof, (C) a material breach of this Agreement by the Employer that is not or cannot be cured within thirty (30) days following of the Executive giving notice of the breach or (D) a change in the general location where the Executive is required to perform services from that prior to a Change of Control which shall include requiring Executive to relocate more than fifty (50) miles from Syracuse, New York.
(e) In the event that Executive elects to resign in accordance with Section 4(d)(ii), Executive shall deliver written notice thereof to Employer’s chief executive officer and the chief executive officer of Employer’s ultimate parent at least ninety (90) days in advance of the effective date of such terminationExecutive’s resignation.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 1 contract
Sources: Employment Agreement (Alliance Financial Corp /Ny/)
Termination Following a Change of Control. (a) If, within eighteen (18) months of a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you if the Corporation terminates Executive's employment without Cause, or if the Executive terminates his employment with Good Reason, within 24 months following a Change of Control, the Corporation shall not be entitled to receive any of provide the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.
Executive with (i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination severance benefits equal to three (3) 2 times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRAExecutive's then current salary, and (B) your payment 100% of the COBRA premiums associated therewithExecutive's aggregate target bonuses of 40% under Section 4.2 above and any other cash bonus plans of the Corporation for the bonus plan year during which the employment termination occurs, continued all paid as a lump sum, and (ii) continuation of the welfare benefits provided under Section 5.1 above (with the exception of participation in the Company’s group health plan (to retirement plans) for the extent permitted 24 months following such termination, in accordance with the applicable benefit plans in effect at the time of such termination and applicable law; provided that if coverage is not permissible under applicable law and the terms of any such plan or applicable law, then in lieu of coverage under such plan) which covers you , the Corporation shall pay to the Executive an amount equal to the premium costs that would otherwise have been incurred by the Corporation for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA such coverage; provided further that if the Executive becomes reemployed with another employer and providedis eligible to receive coverage under a welfare benefit plan from such employer that is comparable to the Corporation's welfare plan, further, that in then the event that you obtain other employment that offers group health benefits, such continuation of coverage by Corporation shall no longer be required to provide those particular benefits to the Company shall immediately ceaseExecutive or to pay the Executive the cost thereof.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in In the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”), (and ") applies to any similar tax that may hereafter payment otherwise required to be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject made to the Excise Tax. Unless otherwise elected by youExecutive pursuant to the terms of this Agreement, such reduction an additional amount shall first be applied paid to any Company Payment payable to you under this letter agreement.the <PAGE>
Appears in 1 contract
Termination Following a Change of Control. (ai) IfSubject to the provisions of Section 8(e), within eighteen (18) months of if, during the Employment Period there is a “Change of Control” Control (as defined below), and (1) your employment is terminated for any reason the Executive incurs an Involuntary Termination prior to the first anniversary of a Change in Control, or no reason by (2) the Company (except requires Executive to relocate outside of the United States prior to the first anniversary of a termination by Change in Control and Executive elects to terminate employment instead of relocating, then the Company for Cause) or for any reason or no reason by you (including any such termination without Good ReasonExecutive shall, in addition to the amounts provided in Section 8(a), the Company shall pay or provide you with the benefits set forth but in lieu of any other payments he may otherwise be entitled to under Section 8 of this paragraph 10(a)Agreement, subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
Prorated Performance Bonus, (ii) A lump sum payment within thirty (30) days following the effective date of such termination a cash amount equal to three one and one half (31.5) times the sum of (A) your average the Executive’s Base Salary plus (B) your average bonus compensation (each, based in effect on the last five years’ average).
(iii) Subject to (A) your timely election Date of continuation coverage under the COBRA, Termination and (B) your payment the Incentive Bonus, if any, paid in the year immediately preceding the year in which the Date of Termination occurs (the COBRA premiums associated therewithaggregate amount being the “Severance Payment”), and (iii) continued participation in the group life insurance and group medical and dental plans on the same terms as such plans are being provided to all of the Company’s group health plan United States senior executives during the Continuation Period (or such longer period as is provided in such plans) for the Executive, his spouse, and his dependents, as applicable and subject to the extent permitted under payment of the applicable law and monthly premiums paid by active senior executives for the terms same coverage. Any Prorated Performance Bonus shall be paid in cash in a single lump sum as soon as practicable, but in no event more than 14 days following the Date of Termination (or at such plan) which covers you for a period earlier date required by law). The Severance Payment shall be paid within 14 days of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation Date of coverage by the Company shall immediately ceaseTermination.
(bii) Notwithstanding any other provision For purposes of this letter agreement to the contraryAgreement, to the extent that you become entitled to a “Change in Control severance benefits under this paragraph 10, such benefits of Control” shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant deemed to the provisions of paragraph 7, 8, 9 or 11 hereof.have occurred if:
(cA) Notwithstanding any other provision person (within the meaning of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control Section 3(a)(9) of the Company (or in the ownership Securities Exchange Act of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 19861934, as amended (the “CodeExchange Act”), (and any similar tax that may hereafter be imposed by any taxing authority), other than CVC, OTPP, or any of their Affiliates or Qualified Transferees (as such terms are defined in the Company Payments will be automatically reduced to an amount that equals Stockholders Agreement), including any group (within the product meaning of 2.99 multiplied by your Rule 13d-5(b) under the Exchange Act)), acquires “base amountbeneficial ownership” (as determined in accordance with Section 280G within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Holding representing more than 50% of the Code and combined Voting Power (as defined below) of Holding’s securities;
(B) at any time after an initial public offering of the treasury regulations thereunder)common stock of Holding, a majority of the members of the Board or of the board of directors of any successor to Holding are not “Continuing Directors” where “Continuing Director” means, as of any date of determination, any member of the Board or of the board of such that you will not be subject successor who (x) was a member of the Board or such successor board 24 months prior to the Excise Tax. Unless otherwise date of determination; (y) was nominated for election or elected to the Board or such successor board with the approval of a majority of the Continuing Directors in office at the time of such nomination or election; or (z) was designated to serve on the Board or such successor board by you, such reduction shall first be applied CVC or OTPP pursuant to any Company Payment payable to you under this letter agreement.the Stockholder’s Agreement;
Appears in 1 contract
Sources: Employment Agreement (Worldspan L P)
Termination Following a Change of Control. If (ai) IfExecutive terminates this Agreement for any reason simultaneously with a Change of Control (in which event notice under Section 2 above shall not be necessary and the termination payments to be made under Sections 4(d)(1), within eighteen (184(d)(2) months of and 4(d)(3) shall be paid simultaneously with, and as a “part of, the Change of Control” ), (as defined belowii) your employment is terminated within six (6) months following a Change of Control Executive terminates this Agreement for any reason reason, subject to the notice provisions of Section 2 hereof, or no reason by (iii) within 24 months following a Change of Control, the Company (except a termination by the Company terminates this Agreement during its Original Term other than for Cause) Cause or for any reason or no reason by you (including any such termination without Executive terminates this Agreement during its Original Term with Good Reason), the Company shall pay or provide you Executive (and Executive's eligible dependents with respect to paragraph (D) below) the following benefits set forth and payments:
(1) all accrued but unpaid amounts of Base Salary and vacation through the effective date of termination, payable in this paragraph 10(a), subject to accordance with the provisions of paragraphs 24 Sections 3(a) and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a3(d) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.above;
(i2) The Accrued Benefits a termination payment in an amount equal to the product of (x) the number of full and partial years remaining in the Original Term (or, if greater, 2 years) and (y) the One-Year Pay Equivalent, which amount shall be payable within thirty (30) days following of the effective date of such termination.;
(ii3) A lump sum payment within thirty (30notwithstanding any other terms of any plan, any vested benefits or amounts pursuant to Section 3(c), 3(e) days following and 3(f) hereof through the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (eachtermination, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation payable in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to accordance with the provisions of paragraph 7, 8, 9 or 11 hereof.any such plan(s); and
(c4) Notwithstanding any other provision the health insurance benefits described in Section 3(c)(1) above for the maximum period permitted under COBRA at the Company's sole expense, together with either (i) additional benefits equivalent to those in effect at the date of this letter agreement to termination, such that Executive will receive Company-paid coverage for a total of 24 months or (ii) if providing such benefits is not permitted by the contrarytax laws or applicable benefit plans, in the event any payment that is either received by you or after-tax equivalent of the premiums paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or for such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementcoverage.
Appears in 1 contract
Termination Following a Change of Control. (a) IfNotwithstanding anything in this Section 7 to the contrary, if Executive’s employment hereunder is involuntarily terminated by the Company Without Cause, or if Executive terminates his employment hereunder with Good Reason in accordance with Section 7(d), in each case within eighteen (18) 12 months of following a “Change of Control” (as defined below) your , or if Executive’s employment hereunder is involuntarily terminated for any reason or no reason by the Company prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by Executive that such termination of employment (except x) was at the request of a third party who has taken steps reasonably calculated to effect a Change in Control or (y) otherwise arose in connection with or anticipation of a Change in Control, then Executive shall receive, in complete satisfaction of all payments (including severance) due under this Agreement, (i) a lump sum payment equal to 24 months of Base Salary and (ii) payment of Executive’s actual bonus earned for the year of termination as determined in accordance with the Company’s annual incentive plan and customary practices as if Executive had remained employed hereunder for the full year in which Executive’s employment terminates and thereafter until the bonus is actually determined and paid. The payment referred to in subclause (i) of this Section 7(f) shall be paid (without duplication of payments previously made in respect of Base Salary under Section 7(e)(i) above, and subject to Sections 7(m), 7(n) and 12(s)(ii) below) on the first payroll date following (but not more than one month after or, if earlier, March 15th of the year following the year in which occurs) the later of (x) the 60th day after the Termination Date and (y) the occurrence of the Change in Control. The payment referred to in subclause (ii) of this Section 7(f) shall be paid (without duplication of payments previously made in respect of such bonus under Section 7(e)(i) above, and subject to Sections 7(m), 7(n) and 12(s)(ii) below) on the first payroll date following (but not more than one month after or, if earlier, March 15th of the year following the year in which occurs) the latest of (x) 60th day after the Termination Date, (y) the date that the bonus is determined, and (z) the occurrence of the Change in Control. In addition, upon a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reasonof employment described in this Section 7(f), the Company (A) Executive shall pay or provide you with receive the benefits set forth in this paragraph 10(aSections 7(g), subject to the provisions of paragraphs 24 7(h) and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average7(i).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewithall unvested equity-based awards granted to Executive on or after September 30, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company 2006 shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contraryfully vested and, in the event any payment that is either received by you or paid by the Company on your behalf or any propertycase of stock options, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (fully vested and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementexercisable.
Appears in 1 contract
Sources: Employment & Non Competition Agreement (ExlService Holdings, Inc.)
Termination Following a Change of Control. (a) IfNotwithstanding anything in this Section 6.5 to the contrary, if this Agreement is terminated by either party for any reason within eighteen (18) twelve months of a “Change of Control” , (as defined belowi) your if such termination occurs during the Initial Term, then Craftmade will pay the Executive's Salary for the remainder of such Initial Term plus two times the Executive's Salary, (ii) if such termination occurs during the First Additional Term, then Craftmade will pay the Executive's Salary for the remainder of such First Additional Term plus an amount equal to the Executive's Salary, or (iii) if such termination occurs during the Second Additional Term, then Craftmade will pay the Executive's Salary for the remainder of such Second Additional Term. If the Executive's employment is terminated for any reason other than Cause or no reason the Executive is removed from office or position with Craftmade in either case following commencement by one or more representatives of Craftmade of discussions (authorized by the Company Board of Directors or the Chief Executive Officer of Craftmade) with a third party that ultimately results in the occurrence of an event described in subsections (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reasona), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a(b), (c), (d), or (e) of the definition of "Change of Control" (subject to the provisions final paragraph of paragraphs 24 such definition) and 25 hereof. Notwithstanding such termination or removal occurs within the foregoing, you shall not be entitled to receive any of period commencing on the payments or benefits set forth in this paragraph 10(a) if you date such discussions are offered “Comparable Employment” (as defined below) by authorized and ending on the Company (or its successor) within sixty (60) days following date that is twelve months from the consummation of such event, regardless of whether such third party is a party to such occurrence, then such termination or removal shall be deemed to constitute a termination following a Change of Control for the purposes of the first paragraph of this Section 6.5(e), and, for the purposes of this Agreement, the date of the authorization of such discussions shall be deemed to be the date of the Change in Controlof Control of Craftmade.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 1 contract
Termination Following a Change of Control. (ai) IfIn the event that there occurs a Change of Control, within as defined in clause (g)(ii) immediately below, and during the period commencing on the day immediately following the occurrence of a Change of Control and ending twenty-four (24) months thereafter, the Company terminates the Executive’s employment hereunder other than for Cause in accordance with Section 5(d) or the Executive terminates his employment hereunder for Good Reason in accordance with Section 5(e) hereof and provided that the Executive satisfies in full all of the conditions set forth in Section 5(h) hereof, then, in addition to Final Compensation, the Executive, in lieu of any payment for which he would have been eligible under Section 5(d) or Section 5(e) hereof, will be eligible for (A) a single lump sum payment equal to eighteen (18) months of Base Salary, without offset for other earnings; (B) a Final Pro-Rated Bonus for the fiscal year in which the Date of Termination occurs, payable at the rime bonuses are paid generally; and (C) health and dental plan premium payments (or, as applicable, reimbursements) on the same terms and conditions applicable in the event of a termination other than for Cause or for Good Reason prior to a Change of Control. Notwithstanding anything to the contrary herein, however, no payments shall be due hereunder until five (5) business days following the later of the effective date of the Release of Claims or the date the Release of Claims, signed by the Executive, is received by the Chair of the Board. The Executive’s rights with respect to indemnification shall be in accordance with Section 12 hereof.
(ii) For purposes of this Agreement, “Change of Control” shall mean the occurrence, after the Closing Date, of (a) any change in the ownership of the capital equity of Easton B▇▇▇ Sports, LLC, if, immediately after giving effect thereto, (A) the Investors (as defined below) your employment is terminated for any reason and their Affiliates will hold, directly or no reason indirectly, less than 50% of the number of Common Units held by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 Investors and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any their Affiliates as of the payments Closing Date or benefits set forth in this paragraph 10(a(ii) if you are offered “Comparable Employment” any Person (as defined in this paragraph, below) by other than the Company (Investors and their Affiliates will hold, directly or its successor) within sixty (60) days following the consummation indirectly, greater than 50% of the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date number of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date outstanding Common Units of such termination equal to three (3) times the sum of (A) your average Salary plus (Easton B) your average bonus compensation (each▇▇▇ Sports, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverageLLC; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
or (b) Notwithstanding any sale or other provision disposition of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 all or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion substantially all of the assets of Easton B▇▇▇ Sports, LLC (including, without limitation, by way of a merger or consolidation or through the Companysale of all or substantially all of the stock or membership interests of its subsidiaries or sale of all or substantially all of the assets of Easton B▇▇▇ Sports, LLC and its direct and indirect subsidiaries, taken as a whole) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax another Person (the “Excise TaxChange of Control Transferee”) imposed by Section 4999 if, immediately after giving effect thereto, any Person (or group of Persons acting in concert) other than the Investors and their Affiliates will have the power to elect a majority of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G members of the Code board of managers or board of directors (or other similar governing body) of the Change of Control Transferee. For purposes of this Section 5(g): A “Person” shall have the meaning ascribed to that term in section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 and “Investors” shall mean all Unit-holders of Easton B▇▇▇ Sports, LLC as of the treasury regulations thereunder)date of this Agreement, such that you will not be subject to the Excise Tax. Unless otherwise elected by youincluding without limitation Fenway Partners, such reduction shall first be applied to any Company Payment payable to you under this letter agreementInc., Teachers Private Capital, York Street Capital Partners, American Capital Strategies Ltd., Antares Capital Corporation, B▇▇▇ Sports Holdings, LLC, B▇▇▇ Sports 2001, LLC, B▇▇▇ Sports 2001 Coinvestors, LLC and B▇▇▇ Sports 2001 Investments, LLC.
Appears in 1 contract
Termination Following a Change of Control. (a) If, within eighteen twenty-four (1824) months of following a “Change of Control” , the Company terminates this Agreement during its Original Term other than for Cause or Executive terminates this Agreement during its Original Term with Good Reason, in either case, subject to the notice provisions of Section 2 hereof, Executive (as defined and Executive's eligible dependents with respect to paragraph (D) below) your employment shall be entitled to receive the following benefits and payments:
(1) all accrued but unpaid amounts of Base Salary and vacation through the effective date of termination, payable in accordance with the provisions of Sections 3(a) and 3(d) above;
(2) a termination payment in an amount equal to the product of (x) the number of full and partial years remaining in the Original Term (or, if greater, 2 years) and (y) the One-Year Pay Equivalent, which amount shall be payable no later than 30 days following (i) the last day of the Advance Notice Period, if termination was at the election of Prime, or (ii) the last day of the notice period required under Section 2 hereof, if termination was at the election of Executive;
(3) any vested benefits or amounts pursuant to Section 3(c), 3(e), 3(f) and 3(g) hereof through the effective date of termination, payable in accordance with the provisions of any such plan(s); and
(4) the health insurance benefits described in Section 3(c)(1) above for the maximum period permitted under COBRA at the Company's sole expense, together with either (i) additional benefits equivalent to those in effect at the date of termination, such that Executive will receive Company-paid coverage for a total of 24 months or (ii) if providing such benefits is terminated for any reason or no reason not permitted by the Company (except a termination tax laws or applicable benefit plans, the after-tax equivalent of the premiums paid by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Controlcoverage.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
(ii) A lump sum payment within thirty (30) days following the effective date of such termination equal to three (3) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(b) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreement.
Appears in 1 contract
Termination Following a Change of Control. (ai) IfSubject to the provisions of Section 8(e), within eighteen (18) months of if, during the Employment Period there is a “Change of Control” Control (as defined below) your employment is terminated for any reason or no reason by the Company (except a termination by the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reason), and the Company shall pay or provide you with Executive incurs an Involuntary Termination prior to the benefits set forth first anniversary of a Change in this paragraph 10(aControl, the Executive shall, in addition to the amounts provided in Section 8(a), subject but in lieu of any other payments she may otherwise be entitled to the provisions under Section 8 of paragraphs 24 and 25 hereof. Notwithstanding the foregoingthis Agreement, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.
(i) The Accrued Benefits within thirty (30) days following the effective date of such termination.
Prorated Performance Bonus, (ii) A lump sum payment within thirty (30) days following the effective date of such termination a cash amount equal to three one and one half (31.5) times the sum of (A) your average the Executive's Base Salary plus (B) your average bonus compensation (each, based in effect on the last five years’ average).
(iii) Subject to (A) your timely election Date of continuation coverage under the COBRA, Termination and (B) your payment the Incentive Bonus, if any, paid in the year immediately preceding the year in which the Date of Termination occurs (the COBRA premiums associated therewithaggregate amount being the "Severance Payment"), and (iii) continued participation in the group life insurance and group medical and dental plans on the same terms as such plans are being provided to all of the Company’s group health plan 's United States senior executives during the Continuation Period (or such longer period as is provided in such plans) for the Executive, her spouse, and her dependents, as applicable and subject to the extent permitted under payment of the applicable law and monthly premiums paid by active senior executives for the terms same coverage. Any Prorated Performance Bonus shall be paid in cash in a single lump sum as soon as practicable, but in no event more than 14 days following the Date of Termination (or at such plan) which covers you for a period earlier date required by law). The Severance Payment shall be paid within 14 days of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation Date of coverage by the Company shall immediately ceaseTermination.
(bii) Notwithstanding any other provision For purposes of this letter agreement to the contraryAgreement, to the extent that you become entitled to a "Change in Control severance benefits under this paragraph 10, such benefits of Control" shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant deemed to the provisions of paragraph 7, 8, 9 or 11 hereof.have occurred if:
(cA) Notwithstanding any other provision person (within the meaning of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control Section 3(a)(9) of the Company (or in the ownership Securities Exchange Act of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 19861934, as amended (the “Code”"Exchange Act")), other than CVC, OTPP, or any of their Affiliates or Qualified Transferees (and any similar tax that may hereafter be imposed by any taxing authorityas such terms are defined in the Stockholders Agreement), including any group (within the Company Payments will be automatically reduced to an amount that equals meaning of Rule 13d-5(b) under the product Exchange Act)), acquires "beneficial ownership" (within the meaning of 2.99 multiplied by your “base amount” Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Holding representing more than 50% of the combined Voting Power (as determined in accordance with Section 280G defined below) of Holding's securities;
(B) at any time after an initial public offering of the Code and common stock of Holding, a majority of the treasury regulations thereunder)members of the Board or of the board of directors of any successor to Holding are not "Continuing Directors" where "Continuing Director" means, as of any date of determination, any member of the Board or of the board of such that you will not be subject successor who (x) was a member of the Board or such successor board 24 months prior to the Excise Tax. Unless otherwise date of determination; (y) was nominated for election or elected to the Board or such successor board with the approval of a majority of the Continuing Directors in office at the time of such nomination or election; or (z) was designated to serve on the Board or such successor board by you, such reduction shall first be applied CVC or OTPP pursuant to any Company Payment payable to you under this letter agreement.the Stockholder's Agreement;
Appears in 1 contract
Sources: Employment Agreement (Worldspan L P)
Termination Following a Change of Control. (a) If, within eighteen (18) months In the event of a “Change of ControlTermination” (as defined in paragraph 4(d) below) your of Executive’s employment is terminated for any reason in anticipation of, or no reason by the Company within 24 months after, a Change of Control (except a termination by the Company for Causeas defined in paragraph 4(c) or for any reason or no reason by you (including any such termination without Good Reasonbelow), the Company shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive any of the payments or benefits set forth in this paragraph 10(a) if you are offered “Comparable Employment” (as defined below) by the Company (or its successor) within sixty (60) days following the consummation of the Change in Control.Employer shall:
(i) The Accrued Benefits within thirty Within seven (307) business days following after termination, pay to Executive three (3) times the effective date average annual compensation paid to Executive by Employer and included in Executive’s gross income for income tax purposes for the three (3) full taxable years that immediately precede the year during which the Change of Control occurs (adjusted to include bonuses paid, rather than accrued, in respect of such termination.years);
(ii) A Provide Executive with his rights, if any, to receive continued health care benefits under COBRA, and pay Executive, within seven (7) business days after termination of employment, a lump sum payment within thirty (30) days following the effective date of such termination amount equal to three (3) times the sum Company’s annual cost of (A) your average Salary plus (B) your average bonus compensation (eachproviding health, based on the last five years’ average).life and long-term disability insurance coverages and other fringe benefits provided to Executive immediately prior to such termination; and
(iii) Subject Treat as immediately vested and exercisable all forms of equity-based compensation, including unexpired stock options and unvested restricted stock previously granted to (A) your timely election of continuation coverage under the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided Executive that you are eligible and remain eligible for COBRA coverage; and provided, further, not otherwise vested or exercisable or that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately ceasehave not been exercised.
(b) Notwithstanding If any other provision portion of the amounts paid to, or value received by, Executive following a Change of Control (whether paid or received pursuant to this letter agreement paragraph 4 or otherwise) constitutes an “excess parachute payment” within the meaning of Internal Revenue Code Sections 280G and 4999, then the lump sum cash payments to the contrary, Executive pursuant to this Agreement shall be reduced to the extent that you become entitled necessary to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, eliminate the application of Internal Revenue Code Sections 280G and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof4999.
(c) Notwithstanding any other provision For purposes of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”paragraph 4(a), will a “Change of Control” shall be subject deemed to the tax have occurred if:
(the i) any “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the person,” including a “Code”), (and any similar tax that may hereafter be imposed by any taxing authority), the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amountgroup” (as determined in accordance with the Section 280G 13(d)(3) of the Code Securities Exchange Act of 1934 (“Exchange Act”), is or becomes the beneficial owner, directly or indirectly, of securities of Employer representing 30% or more of the combined voting power of Employer’s then outstanding securities;
(ii) as a result of, or in connection with, any proxy contest, tender offer or exchange offer, merger or other business combination (a “Transaction”), the persons who were directors of Employer before the Transaction shall cease to constitute a majority of the Board of Directors of Employer or any successor to Employer;
(iii) Employer is merged or consolidated with another corporation and as a result of the merger or consolidation less than 70% of the outstanding voting securities of the surviving or resulting corporation shall then be owned in the aggregate by the former stockholders of Employer, other than (A) affiliates within the meaning of the Exchange Act, or (B) any party to the merger or consolidation;
(iv) a tender offer or exchange offer is made and consummated for the ownership of securities of Employer representing 30% or more of the combined voting power of Employer’s then outstanding voting securities; or
(v) Employer transfers substantially all of its assets to another corporation which is not controlled by Employer.
(d) For purposes of paragraph 4(a), “Termination” shall mean
(i) termination by the Employer (or successor entity) of the employment of Executive for any reason other than death, Disability (as defined in paragraph 4(c) or termination for “Cause” (as defined in paragraph 4(d)), or
(ii) subject to Section 4(e), resignation by the Executive for the following reasons: (A) a significant change in the nature or scope of the Executive’s duties or authority from that prior to a Change of Control or the Executive’s having to report directly to anyone other than chief executive officer of Employer’s ultimate parent, (B) a reduction in the Executive’s total compensation (including accrued bonus or benefits) from that prior to a Change of Control that is not consistent with the provisions of subparagraph 2(b) hereof, (C) a material breach of this Agreement by the Employer that is not or cannot be cured within thirty (30) days of the Executive giving notice of the breach or (D) a change in the general location where the Executive is required to perform services from that prior to a Change of Control which shall include requiring Executive to relocate more than fifty (50) miles from Syracuse, New York.
(e) In the event that Executive elects to resign in accordance with Section 4(d)(ii), Executive shall deliver written notice thereof to Employer’s chief executive officer and the treasury regulations thereunder), such that you will not be subject to chief executive officer of Employer’s ultimate parent at least ninety (90) days in advance of the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementeffective date of Executive’s resignation.
Appears in 1 contract
Sources: Employment Agreement (Alliance Financial Corp /Ny/)
Termination Following a Change of Control. (a) If, If the Employee’s employment with the Company terminates as a result of an Involuntary Termination at any time within eighteen (18) months of after a “Change of Control” (as defined below) your employment is terminated for any reason or no reason by , and the Company (except a termination by Employee signs and does not revoke the Company for Cause) or for any reason or no reason by you (including any such termination without Good Reasonrelease of claims pursuant to Section 7 hereto, then subject to Section 4(c), the Company Employee shall pay or provide you with the benefits set forth in this paragraph 10(a), subject to the provisions of paragraphs 24 and 25 hereof. Notwithstanding the foregoing, you shall not be entitled to receive the following severance benefits:
(1) Twelve (12) months of Employee’s base salary and any applicable allowances as in effect as of the payments or benefits set forth date of the termination or, if greater, as in this paragraph 10(a) effect immediately prior to the Change of Control, plus an amount equal to the full amount of Employee’s target bonus for the calendar year of the date of termination, or, if you are offered “Comparable Employment” (as defined below) by no target bonus has been established, an amount equal to Employee’s target bonus in the Company (or its successor) prior year, less applicable withholding, payable in a lump sum within sixty (60) days following the consummation date of termination;
(2) unless provided otherwise in the applicable award agreement, the vesting of all equity awards granted by the Company to the Employee prior to the Change in Control.of Control shall accelerate and become fully vested to the extent such equity awards are outstanding and unvested at the time of such termination;
(3) the Employee shall be permitted to exercise all vested (including shares that vest as a result of this Agreement) stock options granted by the Company to the Employee prior to the Change of Control for a period ending on the earlier of (i) The Accrued Benefits within thirty two (302) days years following the effective date of such termination.
Termination Date and (ii) A lump sum payment within thirty the expiration of the term of the stock options specified in the applicable option agreements; and
(304) days following the effective date same level of Company-paid health (i.e., medical, vision and dental) coverage and benefits for such termination equal to three coverage as in effect for the Employee (3and any eligible dependents) times the sum of (A) your average Salary plus (B) your average bonus compensation (each, based on the last five years’ average).
(iii) Subject to (A) your timely election of continuation coverage under day immediately preceding the COBRA, and (B) your payment of the COBRA premiums associated therewith, continued participation in the CompanyEmployee’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you for a period of eighteen (18) months, provided that you are eligible and remain eligible for COBRA coverageTermination Date; and provided, furtherhowever, that (i) the Employee constitutes a qualified beneficiary, as defined in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company shall immediately cease.
(bSection 4980B(g)(1) Notwithstanding any other provision of this letter agreement to the contrary, to the extent that you become entitled to Change in Control severance benefits under this paragraph 10, such benefits shall be in lieu of, and not in addition to, the severance benefits that would otherwise become payable pursuant to the provisions of paragraph 7, 8, 9 or 11 hereof.
(c) Notwithstanding any other provision of this letter agreement to the contrary, in the event any payment that is either received by you or paid by the Company on your behalf or any property, or any other benefit provided to you under this letter agreement or under any other plan, arrangement or agreement with the Company or any other person whose payments or benefits are treated as contingent on a change of ownership or control of the Company (or in the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such person (but only if such payment or other benefit is in connection with your employment by the Company) (collectively the “Company Payments”), will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) Employee elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the time period prescribed pursuant to COBRA. The Company shall continue to provide Employee with such Company-paid coverage on a monthly basis following the Termination Date until the earlier of (i) the date Employee (and any similar tax that may hereafter be imposed by any taxing authority)his/her eligible dependents) is no longer eligible to receive continuation coverage pursuant to COBRA, or (ii) twelve (12) months from the Company Payments will be automatically reduced to an amount that equals the product of 2.99 multiplied by your “base amount” (as determined in accordance with Section 280G of the Code and the treasury regulations thereunder), such that you will not be subject to the Excise Tax. Unless otherwise elected by you, such reduction shall first be applied to any Company Payment payable to you under this letter agreementTermination Date.
Appears in 1 contract
Sources: Change of Control Severance Agreement (Threshold Pharmaceuticals Inc)